On April 4th, HUD released a statement entitled “Guidance on Application of Fair Housing Standards to the Use of Criminal Records by Providers of Housing and Real Estate Related Transactions” that immediately set the landlording world abuzz with the news that we could no longer “discriminate” against felons.
Like most incursions by the government into our private property rights, this one spawned a great deal of wrath, and a lot of angry speculation and half-truths regarding what the statement actually “means”.
First, to be clear, this is NOT a new “law”.
It’s what is euphemistically called “guidance” by HUD, which, in this case, is acting as the arbiter and policing force behind fair housing law. So while no actual change to federal law has occurred, we can assume that, going forward, this “guidance” has the force of law, at least insofar as fair housing testing and enforcement is concerned.
In other words, while congress has made no law, and the courts have made no decision in regards to this new policy, it IS one that HUD will use to prosecute housing providers that “break” it.
Second, in order to understand why HUD thinks that whether or not you rent to felons is a discrimination issue AT ALL, it’s important to understand the “Doctrine of Disparate Impact”.
Back in 1968, when the Civil Rights Act defined housing discrimination as the “refusal to sell or rent a dwelling to any person because of his race, color, religion, or national origin” (other categories of “protected classes” were added later in both the Federal and State and Local laws), discrimination was understood to be an intentional, if not overt, act.
It was widely recognized that housing providers, sellers, agents, and lenders who intended to keep members of certain classes out of housing didn’t always just say “No Chinese Allowed”—instead, they engaged in subtle behaviors like “steering” (“I think you’d be happier in this neighborhood over here than in the one you said you wanted”), claiming units were rented when members of one class called but available when others did, and other discriminatory conduct.
What these had in common with more run-of-the-mill “We don’t rent to your kind” acts was that they were all intentional efforts to keep certain people out of certain neighborhoods or properties based on their membership in a protected class. As such, they clearly fit into the definition of “discrimination”, and thus were violations of the law.
However, as time passed (and both overt and covert real discrimination lessened in the U.S.), fair housing “thinking” began to evolve to include the idea that even completely unintentional acts, if the effects of those acts served to limit the housing choices of protected classes, could be discriminatory, illegal, and punishable by law.
One of the early situations to which the disparate impact doctrine was applied was in occupancy limits. Landlords who created policies that limited the number of people allowed in a unit—for instance, “I won’t rent my 2 bedroom apartment to more than 3 people”, were accused of discriminating against families with children because, obviously, such families would be more impacted by such a policy than families without children
The fact that the reason behind these policies has to do with the economics of owning rentals (more occupants use more utilities and do more damage) does not stop them, under the Doctrine of Disparate Impact, from being illegal.
While the idea that you can be prosecuted for unknowingly and unintentionally discriminating might seem dangerous and unfair, the Supreme Court did uphold it in a 2015 decision, saying that the Civil Rights Act does govern any and all policies that create “artificial, arbitrary, and unnecessary barriers” to housing based on “statistical disparities”.
So what has disparate impact and statistical disparities got to do with felons?
Easy. HUD’s argument is that, since people of color make up a much higher percentage of the prison population than they do of the general population, any policy that denies felons housing is going to deny more blacks and Hispanics housing than it does whites.
The reaction of the landlording community to this rule—and the assertion that refusing to rent to felons was de facto race discrimination—was, basically, “Are they crazy? It’s not that I don’t want black people or Hispanic people living in my rentals, it’s that I don’t want murderers, rapists, drug dealers, child molesters, thieves, forgers, batterers, or criminals of any color, sex, handicap, religion, nationality, color, or disability living in my rentals! For a lot of reasons, not the least of which is that I don’t want to be raped, murdered, assaulted, or stolen from myself!”
But now that you’ve had some time to calm down a little, and are all by your little lonesome with no one around that you have to defend yourself to, how about we do a little gut check around race, sex, criminality, and discrimination.
Let’s say that you have a house for rent, and you’ve gotten these 4 applications.
All applicants are qualified as to income, credit score, and rental history, and are in all ways equal except for their criminal history.
You HAVE to accept one of them as a tenant. Imagine each one in front of you, and consider each carefully…
- a 51 year old man who went to jail at 25 for dealing crack
- a 35 year old woman who is on probation for felony assault
- a 40 year old man who just got out of jail for embezzling $450,000 from his former company
- A 25 year old woman who just got out of jail for passing bad checks
Now answer this question honestly: what color did you just imagine each of these people to be?
If you’re like most Americans, you probably assume that #3 is a white guy, and he’s probably also the one that you’re most likely to have said you’d choose—and I bet that’s true no matter what the color of your own skin.
You may tell yourself that it’s because his is a non-violent crime, but so is dealing crack and passing bad checks. You might tell yourself that it’s because he’s unlikely to be in a position to be able to re-offend, or that he’s unlikely to be able to embezzle FROM YOU, but #4 isn’t going to be able to pass bad checks to you if you refuse to take checks from her, either.
So, you see, HUD may actually have a point that on some level, we associate violent and drug-related crimes more closely with people of color than we do with white folks, and that refusing to rent to all felons may in fact BE a subconscious form of discrimination.
It’s so easy to dismiss this entire argument by saying, “Well, it’s provably true that people of color commit more felonies per capita than whites or Asians, given that African-Americans make up 12% of the population, but 36% of the prison population , so, yeah, refusing to rent to felons WILL impact blacks and Hispanics more, but hey, maybe they should stop committing so many crimes and then they wouldn’t have a problem.”
But what’s harder to admit is that America has systemic problems that makes access to good legal defense easy for people with money, and tough for people without, and that a person with white skin and financial resources is a lot less likely to be convicted of a felony, even if he DID commit it, than is a person with darker skin and a public defender. Add to that the sad state of public education, the pressures of poverty, and a whole host of other structural issues that are nobody’s fault and everybody’s fault, and tell me again how you convicted felons are just, 100% of the time, bad risks as tenants.
Yep, this is one of those ugly, messy, divisive, and incredibly complex issues that pit the natural and legal rights of one group against another.
In this case, the conflict is between the perceived social injustice of denying ALL people with a criminal record, regardless of the details of that record, housing against your right to control your private property.
Housing providers and landlords—who, to a man or woman, would probably say that they should NOT be required to let ANY convicted felon have the keys to their properties—are now under a government edict to reconsider their standards. The powers that be have decided that your right to fully control private property that you purchased and managed is outweighed by the “good” that might come from you reconsidering your policies on rentals.
But the good news is, the new guidelines don’t say that you MUST rent to felons, nor do they say that you can’t take criminal history into account. What they say is that a policy that bars ALL felons, no matter what the nature of their crime or when it was committed, might be considered to be discriminatory because of the perceived disparate impact on people of color.
Until actual cases or new “guidance” prove otherwise, you can have policies regarding renting to felons that protect your property, your safety, or the safety of you other tenants and neighbors. What you can’t do is have a no-felons policy based on generalizations like “all criminals are bad tenants”.
Instead—and we’ll undoubtedly get more insight into what HUD thinks is acceptable in future years—you’ll need to have more nuanced policies that you’re willing and able to defend as protecting your property and safety. For instance, you might have criteria that say something like,
No violent or drug-related felonies
No crimes against children
No felonies committed within the last 10 years, and no imprisonment for felonies within the last 5 years
No crimes against landlords or rental properties
No convictions or pleas to any crime involving metal theft, vandalizing properties, or otherwise damaging properties.
No arson convictions or pleas
And, as is always the case when you change your rental standards, you’ll need to have these policies in writing, update them as they change, keep written records of how any application rejections violated your policies, and above all, apply your rules equally to all applicants of all races, religions, disabilities, familial statuses, and so on.
In other words, don’t be what the folks who’d like to further impinge on your property rights think you are. Don’t use your crime-related applicant policies to discriminate against applicants because of their membership in a protected class.
And let’s all keep hoping for day when equality is so pervasive that no one even thinks to regulate it.