A Critical Tool to Advance Fair Housing Is Upheld by the Supreme Court

The U.S. Supreme Court ruled to keep a key piece of a landmark civil rights law intact this week in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. In its 5-4 decision, the Court upheld the disparate impact theory under the Fair Housing Act (FHA)—an important law passed in 1968 to increase fair housing opportunities for minority populations, decrease segregation, and eliminate discrimination in housing.

Sadly, 40 years after Congress enacted the FHA, segregation and unequal access to housing for minorities remain the norm. Decades of discriminatory policies and practices like exclusionary zoning, urban renewal, and redlining have perpetuated segregation and led to devastating effects on low-income and minority communities. These effects were magnified by the foreclosure crisis, which flowed in large part from the discriminatory practices of subprime lenders in minority neighborhoods.

The disparate impact theory of proving discrimination is critical to combating these effects, because there is often insufficient evidence to meet the higher burden of proving intentional discrimination—also known as disparate treatment. As Justice Kennedy clarified in Thursday’s decision, the disparate impact theory “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” The Obama Administration has relied on the disparate impact theory to force important settlements with lending institutions accused of discriminatory practices, and to challenge local government policies that limit the housing opportunities available to racial minorities. 

The disparate impact theory is also a critical tool for responding to the spread of overly broad criminal background screening policies applied to housing applicants, and the increasing number of local governments passing crime-free and nuisance property ordinances under the guise of combatting crime. Although seemingly neutral, these ordinances have serious, harmful, and discriminatory consequences. By subjecting entire households to eviction when the police are called repeatedly to particular rental properties, these ordinances frequently punish domestic violence survivors for the acts of their abusers. They also reduce the supply of affordable rental housing in communities and target renters, who are disproportionately racial minorities, on the basis of minor offenses.

These are just some examples that demonstrate why disparate impact theory is a critical tool to advance fair housing throughout the country. Armed with today’s decision, advocates can continue to develop this tool to combat the ongoing harmful effects of segregation and discrimination. Beyond upholding claims based on disparate impact theory under the FHA, the Court confirms that this theory provides advocates with the ability to stop local governments from enforcing “arbitrary and, in practice, discriminatory ordinances.” 

Although today’s decision represents a great victory for housing advocates, it does include some warnings for those charged with implementing the FHA. It clarifies, for example, that courts will be prevented from using racial targets or quotas to remedy discrimination. There also remains the risk that the FHA will face new legislative challenges. As the Shriver Center’s Poverty Scorecard highlighted, proposals to undermine the disparate impact theory were brought forward in Congress this session, including HB 265, which would have prevented the Department of Justice from using disparate impact theory in enforcing the FHA. 

This case highlights the critical role of the FHA in the broader landscape of civil rights protections, and advocates can continue to develop its use in remedying the injustice of ongoing residential segregation and discrimination in our communities. As Justice Kennedy stated, “The FHA must play an important part in avoiding the . . . grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” 

When Discretion Means Denial Redux: How HUD Policies Continue to Deprive Housing to Persons with Criminal Records

We’ve been at this crossroads before—this is our Groundhog Day. In 2011, former Secretary of Housing and Urban Development (HUD) Sean Donovan urged HUD-supported affordable housing providers to use their discretion in admitting persons with criminal histories to housing. But a 2012 Shriver Center report found that affordable housing providers in Illinois were essentially using this discretion to enact far-reaching criminal background check admission policies. We found rental housing admission policies that denied admission to anyone who had ever been arrested for anything in their lifetime. Other policies went so far as to impose 100-year criminal background checks on applicants. In short, HUD’s unchecked deference to housing providers for their criminal background check policies resulted in draconian, blanket-ban formulas that could run afoul of civil rights laws. Our 2012 report urged HUD to take action to limit these policies and to ensure that housing providers make individualized determinations of an individual’s criminal history based upon the seriousness of the crime, how long ago it occurred, and any evidence of rehabilitation, among other factors. Since that report, however, HUD has taken no action to change its policies or curb troubling criminal background check policies by its housing providers.

Now, almost three years later, a review of over 300 admission policies from across the country has found that these problems are not unique to Illinois.  Indeed, draconian, blanket-ban admission policies among HUD housing providers are now the norm across the nation. Essentially, nothing has changed—public housing authorities and federally subsidized project owners continue to use their discretion, granted by HUD, to deny admission to applicants for arrests, and they frequently automatically exclude applicants with any kind of criminal record.

These housing admission policies are increasingly challenged as a violation of civil rights laws, something long recognized by the Equal Employment Opportunity Commission regarding aggressive employment background checks. HUD must acknowledge well-documented evidence of racial bias within the criminal justice system that results in racial minorities having disproportionate contact with that system. Because HUD is bound by civil rights laws it can no longer ignore the draconian policies it has essentially sanctioned. HUD’s Office of Fair Housing and Equal Opportunity should issue guidance, similar the EEOC’s, making clear to housing providers that some of these housing-related policies violate civil rights laws and can be considered a proxy for discrimination according to race. Current HUD Secretary Julian Castro should also go beyond what his predecessor did and ban the use of arrest records; ban lifetime or blanket bans; and obligate housing providers to make individualized determinations based on the seriousness of the crime, the number of years passed since the offense was committed, and any evidence of rehabilitation.

We’ve said this all before however. Now it’s time to start listening. 


How Arrest Record Screening Fails to Fight Crime and Impedes Fair Housing

HandcuffsLandlords and local housing authorities should stop using arrest records to screen tenants. Bans on tenants with past arrests simply do more harm than good. They give people a false sense of security against crime, and they deprive disproportionately more racial minorities of needed rental housing for nothing more than an unproven accusation. An end to this practice will require the help of the U.S. Department of Housing and Urban Development (HUD) and the Civil Rights Division of the U.S. Department of Justice (DOJ).

Housing does not become safer just because people with arrest records are banned. Reducing crime requires something that predicts future criminal activity. But arrest records do not work because, as courts have long recognized, they can’t even indicate past criminal activity reliably. 

According to the U.S. Supreme Court, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he engaged in any misconduct,” even outside the context of a criminal trial. Another federal court has referred to arrest records simply as “gutter rumors when measured against any standards of constitutional fairness to an individual.”

The Illinois Appellate Court recently took a similar position against the use of arrest records, this time in the housing context. Landers v. Chicago Housing Authority involved Keith Landers, an African-American man who was placed on the waiting list for public housing in 1995. In the 13 years it took for Mr. Landers to reach the top of the waiting list, he went through long periods of homelessness and found himself arrested several times, though he was never convicted. Despite the instability that often comes with homelessness, Mr. Landers managed to jump through all the administrative hoops necessary to stay on the waiting list until his name finally came up at the end of 2008.

Because of his prior arrests, however, the Chicago Housing Authority denied Mr. Landers’ application. It was unwilling to consider the fact that none of the arrests led to a conviction or that he denied committing the underlying offenses, most of which were minor and stemmed from having to live out in the open. After reviewing these factors, the Illinois Appellate Court could find “no evidence whatsoever that [Mr. Landers] engaged in criminal activity where the outcome of his arrests was the consistent dismissal of the charges.” The court, therefore, refused to equate his past arrests with proof that Mr. Landers was a threat to the health, safety, and welfare of the public housing community.

The problem with these policies is not just they do not fight crime very well; it’s that they also disparately impact racial minorities in the name of fighting crime. Arrested at disproportionately higher rates, racial minorities are more likely to be denied housing if arrest records are used as tenant screening criteria. African-Americans, for example, accounted for nearly 27% of the arrestees nationwide in 2004, but only about 12% of the population. This unjustified racial disparity has led the Equal Employment Opportunity Commission (EEOC) to declare the use of arrest records in employment decisions as suspect under Title VII, the federal civil rights law that prohibits employment discrimination. It is time for HUD to make a similar declaration under the Fair Housing Act and to work with DOJ to ensure that this practice ends. 

Currently, HUD offers no guidance on the use of arrest records for private landlords. Similar guidance is lacking for local public housing authorities, even though these recipients of federal funding are obligated not only to refrain from discriminating, but also to affirmatively promote the right of fair housing. Without direction from HUD or DOJ, arrest records will continue to be a significant barrier for many of the people who need rental and public housing the most, putting many, like Mr. Landers, at risk of homelessness.

To prevent this outcome, HUD should bar housing authorities and private owners participating in HUD programs from using arrests to screen applicants. In addition, DOJ and HUD should work together to use the Fair Housing Act to challenge housing policies that ban people with arrest records. For examples of what happens when these bans are lifted, they can look to the housing authorities of New York City, Baltimore, and Los Angeles--all of whom have stopped screening applicants for arrests as a matter of policy. This refusal to consider arrests has not compromised the safety of their public housing communities either. Indeed, they report “combat[ting] crime just as effectively with their policies as PHAs with far harsher ones,” thus confirming the need for an end to the ineffective, racially disparate use of arrest records as a screening device.

Marie Claire Tran-Leung is a staff attorney and Soros Justice Fellow. Her project focuses on using the Fair Housing Act to reduce housing barriers for people with criminal records. The Legal Assistance Foundation of Metropolitan Chicago represented Mr. Landers, and an amicus brief in support of Mr. Landers was filed by the Shriver Center, the Mandel Legal Aid Clinic, Uptown People’s Law Center, Chicago Area Fair Housing Alliance, Chicago Coalition for the Homeless, Legal Action Center, and National Center on Homelessness and Poverty.