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HUD Notices, Guidance, and Memos

Application of Fair Housing Act to Criminal History Screening

On April 4, HUD’s Office of General Counsel released guidance on the Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. The guidance applies to both private and subsidized housing and addresses how the discriminatory effects and disparate treatment theories may apply in cases where a housing provider refuses to rent to an individual due to his or her criminal history. While having a criminal record is not a protected characteristic under the FHA, the notice explains that “criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national original over another” or if a housing provider “treats individuals with comparable criminal history differently because of their race, national origin, or other protected characteristic.” National data shows that racial and ethnic minorities face disproportionately high rates of arrest and incarceration. In particular, blanket bans on housing for people with criminal records may have a disparate impact on African Americans and Hispanics. Housing providers that choose to exclude people with criminal records must therefore show that the policy serves a legitimate public interest. The notice is an important step towards expanding housing opportunities for people who have come in contact with the criminal justice system.

HUD Issues Guidance Regarding Use of Arrest Records in Housing Decisions

In November 2015, HUD issued new guidance regarding the use of arrests in housing decisions within the federally subsidized housing programs. HUD has issued two notices with the same content—one addressed to housing authorities and Section 8 Housing Choice Voucher landlords (Notice PIH 2015-19) and the other notice addressed to owners of multifamily properties subsidized through HUD programs (Notice H 2015-10). These notices inform HUD housing providers that arrest records alone cannot serve as the basis for an eviction, termination, or denial of admission for HUD’s public housing and subsidized housing programs. In HUD’s view, an arrest is insufficient to demonstrate involvement in criminal activity. However, the notices explain that the underlying conduct for an arrest can be the basis of an adverse housing decision if there exists “sufficient evidence” that someone engaged in the criminal activity at issue. Therefore, an arrest record can prompt further inquiry into an individual’s conduct, but cannot serve as the sole basis for an adverse housing action. Housing providers can use witness statements, police reports, and “[r]eliable evidence of a conviction” to demonstrate that criminal activity has taken place. The guidance notes that screening, termination, and eviction policies must comply with the FHA and civil rights laws. Additionally, the guidance clarifies that PHAs are not required to adopt “one-strike” policies and discusses best practices in screening tenants for criminal history.

HUD published FAQs related to the notice. The FAQs clarify HUD’s guidance on the use of arrest records in housing decisions and are intended as a supplemental resource.

Local Nuisance Ordinance and Crime-Free Housing Ordinance Guidance

HUD’s Office of General Counsel issued guidance that examines the enforcement of nuisance ordinances and crime-free housing ordinances using a Fair Housing Act analysis. Specifically, the guidance employs both the disparate treatment and discriminatory effects methods of proof under the FHA to analyze such ordinances, with a primary focus on how such ordinances may impact survivors of domestic violence. Note, however, that the standards articulated in the guidance “apply equally to victims of domestic violence and other crimes and to those in need of emergency services who may be subjected to discrimination…due to the operation of these ordinances.” HUD stated its intent to issue subsequent guidance about the relationship between such ordinances and disability discrimination.

The guidance analyzes these ordinances under the FHA’s discriminatory effects method of proof. The first step of this analysis is to determine whether the policy or practice being evaluated has a disparate impact on a group because of that group’s protected characteristic. The plaintiff (or complainant in an administrative proceeding) has the burden of proof for this step. The guidance notes that various different data sources may be available to demonstrate whether a particular ordinance will “actually or predictably” result in a disparate impact, including local data (e.g., police records, resident data) as well as national statistics regarding the enforcement of ordinances based on protected characteristics. If a plaintiff/complainant can establish that a challenged ordinance had a disparate impact on one or more protected classes, the burden then shifts to the local government to prove that the ordinance is “necessary to achieve a substantial, legitimate, nondiscriminatory interest.” Assertions “based on generalizations or stereotypes about persons deemed to engage in nuisance or criminal conduct” will not satisfy this burden. The guidance notes that it is not likely that a legitimate, core governmental interest can be served by preventing access to essential emergency services for those who have a significant need for such services, such as domestic violence survivors or other crime victims. If the local government satisfies its burden in step 2, then the burden again shifts to the plaintiff/complainant to prove that this interest could be served by another policy or practice that has a less discriminatory effect (that also serves the local government’s “substantial, legitimate, nondiscriminatory interest”). The guidance states that this analysis will be fact-specific.

The guidance then moves to an intentional discrimination analysis under the FHA. A jurisdiction can violate the FHA by intentionally discriminating in adopting or enforcing a nuisance or crime-free ordinance. In evaluating a claim that such an ordinance was adopted due to discriminatory motives, the guidance explains that courts look at factors including: (1) the ordinance’s impact (i.e., if the ordinance disproportionately affects a particular group); (2) historical background; (3) the sequence of events leading up to adoption; (4) procedural departures (i.e., deviation from procedures normally followed); (5) substantive departures (i.e., a local government normally would have decided differently); (6) the administrative or legislative record. In evaluating a claim of selective enforcement, in the absence of “smoking gun” evidence, courts will look to direct or circumstantial evidence in order to draw an inference. For example, the guidance notes that some courts have inferred intentional sex discrimination “directly from evidence that a housing provider [sought] to evict female residents shortly after incidents of domestic violence.” A plaintiff/complainant can also use circumstantial evidence to demonstrate intentional discrimination, using the McDonnell Douglas burden-shifting framework. First, a plaintiff/complainant must demonstrate a prima facie case of disparate treatment. If a plaintiff/complainant can establish a prima facie case, the government official or housing provider must offer clear and specific “evidence of a legitimate, nondiscriminatory reason for the adverse housing action.” If the local government/housing provider satisfies this burden, the plaintiff/complainant’s claim can still succeed by demonstrating the local government’s nondiscriminatory reason is pretextual. For example, a local government’s assertion that citations for violating an ordinance were issued to a housing provider, not a tenant, and therefore the citations would not cause a tenant’s eviction, could be evidence of the local government’s pretext.

The guidance concludes by suggesting that states and local governments should evaluate nuisance ordinances, crime-free ordinances, and associated practices and policies in their Assessments of Fair Housing as part of their obligations under the Affirmatively Furthering Fair Housing rule. The guidance notes that “[o]ne step a local government may take toward meeting its duty to affirmatively further fair housing is to eliminate disparities by repealing a nuisance or crime-free ordinance that requires or encourages evictions for use of emergency services, including 911 calls, by domestic violence or other crime victims.”

Letters from HUD regarding informal guidance on screening applicants for a criminal record

Former HUD Secretary Shaun Donovan has sent two letters to housing providers recognizing the pressing housing needs of individuals who have been incarcerated and urging the adoption of flexible admissions policies that enable these individuals to secure housing and rejoin their families.

The first letter was sent on June 17, 2011 to Public Housing Authorities (PHAs). By reminding PHAs of their considerable discretion in admissions, the letter provides important clarification, as many PHAs have overly restrictive policies that exclude nearly anyone with a criminal record. Before this letter was issued, National People’s Action (NPA), with NHLP’s support, sent a letter to Secretary Donovan, encouraging HUD to offer new guidance to PHAs. The June 17th letter partially adopted two of the recommendations to explain and clarify current law, but HUD failed to make any of the other proposed changes. While Secretary Donovan’s letter is an important step forward in eliminating barriers that prevent ex-offenders from re-entering society, much work remains.

On March 14, 2012, Secretary Donovan and Acting FHA Commissioner Carol Galante sent a letter to owners and agents of HUD-assisted properties emphasizing the importance of providing stable housing to formerly incarcerated individuals. This letter asks HUD-assisted property owners to allow ex-offenders to rejoin the community to the extent that a balance between reuniting ex-offenders with their families and ensuring the safety of all residents can be maintained.

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