Monday, April 11, 2016

HUD: protecting tenants from criminals is racist

Protecting tenants from criminals is now racist, according to HUD.  A landlord who wants to provide safe housing can incur the ire of HUD if he screens potential renters with a criminal background check.  Thank you, Justice Kennedy.  HUD issued "guidance" a week ago on the use of criminal background checks by landlords. Meet the new racism as defined by HUD:

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a dispropor-tionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, 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 origin over another (i.e., discriminatory effects liability).

Ah, the magic words, disproportionate impact. Public safety means less to these modern-day Strelnikovs than does "disproportionate impact".   It might surprise some liberals but even minority families take factors such as crime into consideration when deciding where to live.  However, HUD doesn't care about intentions:

A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification. Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.

A Supreme Court ruling that allowed disparate impact analysis on fair housing issues attracted little attention last year.  Understandable as the ruling was issued on the same day as the ruling on gay marriage.  Want to keep your apartment complex free of criminals so families can live in safety? You're a racist if you use a criminal background check to do so.  However, HUD doesn't stop with its version of "fair housing" but instead proceeds to indict the entire American criminal justice system:

National statistics provide grounds for HUD to investigate complaints challenging criminal history policies. Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration. For example, in 2013, African Americans were arrested at a rate more than double their proportion of the general population. Moreover, in 2014, African Americans comprised approximately 36% of the total prison population in the United States, but only about 12% of the country’s total population. In other words, African Americans were incarcerated at a rate nearly three times their proportion of the general population. Hispanics were similarly incarcerated at a rate dispropor-tionate to their share of the general population, with Hispanic individuals comprising approximately 22% of the prison population, but only about 17% of the total U.S. population.18 In contrast, non-Hispanic Whites comprised approximately 62% of the total U.S. population but only about 34% of the prison population in 2014. (KF: and have a much lower unwed birthrate.) Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males.

However, once HUD makes its little determination that the use of the criminal background check is discriminatory, the burden of proof shifts to the landlord.  How many landlords can afford to hire attorneys and expert witnesses?

In the second step of the discriminatory effects analysis, the burden shifts to the housing provider to prove that the challenged policy or practice is justified – that is, that it is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the provider.21 The interest proffered by the housing provider may not be hypothetical or speculative, meaning the housing provider must be able to provide evidence proving both that the housing provider has a substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the challenged policy actually achieves that interest.

Keeping criminals away from tenants is not a "legitimate" interest if the government considers a whole class of criminals to be unfairly convicted and incarcerated.  Protecting tenants from criminals is a common-sense business practice.... unless one is dealing with HUD.  HUD states:

A housing provider must, however, be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property. Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden.

Father, forgive them for they know not what they do.   HUD then argues that denying housing to people who were arrested but never convicted is discriminatory.  No argument here.  An arrest is just that, an arrest.  HUD then moves on to convictions and states that a "blanket ban" on convicts violates the law.  However, even a common-sense policy of banning say, rapists or burglars runs afoul of HUD:

A housing provider with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not. 
The landlord must show he considered the date of conviction and how severe the offense was. How much money will a landlord have to pay an attorney to ensure he jumped through enough hoops to escape the wrath of HUD?  One can only imagine how many so-called fair housing advocates will gin up lawsuits and housing complaints against landlords in order to bend them to their will.

HUD also goes out of its way to make sure that convicted drug users are protected as well.  Section D (p.8) states that the landlord can deny housing to convicted drug dealers but not convicted drug users. 

HUD sums it all up in its closing paragraph. Woe to landlords who decide to use criminal background checks to screen potential tenants:

Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.

Nothing like seeing your government working against you.


Johnny Weir said...

How unjust for business.

Looks like Obama, Bennie Thompson, and the black cacaus is at work here.
These little facts slide under the radar taking away our freedoms little by little.
Wait till Hillary get elected.
the federal government uses taxpayer money to get their liberal agenda across. How can business with no funds or limited funds fight a government eninty with unlimited funds from the tax rolls? They can't
This is it folks. This electing will determine how fast America is destroyed. A multiracial culture. My foot. A big joke. Bring in the clowns, Where are the clowns? Don't bother they are here.

Anonymous said...

That certainly moves the policies in that direction. However, that agency doesn't get to decide that. A federal court makes that determination. Separation of powers and all.

Book It Danno said...

The EEOC has used background checks in employment as a negative barometer for decades. Folks like the notoriously racist ex-representative Eric Fleming more than once introduced legislation to prohibit criminal background checks. And that will become law before long if we return the state and federal legislative control to democrats.

Anonymous said...

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

So if someone doesn't have a job because the poor economy has disproportionately impacted Africa Americans, do I still have to rent them a place to live if they do not have an income?

Anonymous said...

The theory of disparate impact is being used now across a broad range of federal agencies. The CFPB, because racial information is unavailable in most credit transactions, actually uses proxy information to test for disparate impact. So, the government appends a guess as to the race of the applicant. And if your credit practices, regardless if they are rooted in credit scores and other objective criteria, result in disparate impact on the assumed racial mix in a data set, you are guilty of discrimination. Now, if you are a creditor, you can mimic the government's process to append race. But, if you find disparate impact in your portfolio, how do you even fix that without increasing credit losses?

Anonymous said...

Now the tax payer even has to pay for the housing for criminals when they are out of jail.
African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population simply because they commit crimes at rates greater than the general population.

Anonymous said...

The slumlords that enroll their $8k properties into the HUD program are enablers for the same things they speak negatively about. For this I know. A couple of months of HUD vouchers and the garbage property pays for itself and they could care less who rents it. Ive heard of HUD landlords having tenants rip the doors off cabinets and burned as fire wood and they just nail plywood back over them. For $600/mo or better vouchers, they could care less. Terrible policy, but I'm pretty sure most aren't running background checks. They are also the first to cuss a hoodrat, but glad when that check comes.

Anonymous said...

@12:37 would you put cabinet doors back up?

Anonymous said...

The owners of the slum property take the government rent and plow nothing back into the property to maintain it. The generate large cash flows ( because repairs and maintenance are ignored) to turn around to sell the property. In addition, they now get large property tax breaks ( Section 42 Housing) that cost local governments and schools millions. This was done by an administrative order in the DOR ( pushed by certain state officials that were Feeling it) and upheld by the courts.

Anonymous said...

Meanwhile, events such as the one posted earlier on JJ, will continue. Sad. Violence will now be the norm and be expected without any recourse. I hope HUD has deep pockets. Oh wait, they can just tax citizens who pay taxes. Even worse.

Anonymous said...

We have become so open minded that our brain has fallen out!

Anonymous said...

Just wait til either Bernie or Hillary assumes office. You ain't seen shit yet.

Anonymous said...

We write this off because yes, this is bad policy in the sense that it is a shotgun approach. But we all know good people, black, white, whatever else that have gotten in trouble with the law before that does not define them. And we also know plenty of people who have gotten out of trouble because they understand the legal system better or have access to high priced lawyers.

This HUD law horribly tries to address that disparity.

Anonymous said...

It has nothing to do with addressing a disparity. It is just another way for criminals to get on the govt. dole. The victims make the first payment to these people. The tax payers make a second payment to them by housing them and feeding them while in jail. Then the tax payers make another payment by providing a home for the criminal to live in while planning and executing their future crimes.

Anonymous said...

Unfortunately no guns were involved :-(

Anonymous said...


If people have gotten in trouble with the law, it's because they broke the law... and that DOES define them to most folks. I think you've DEFINED yourself with your interpretation.

Anonymous said...


Sounds like you know just enough to be dangerous...section 42 housing wasn't done by "administrative order by DOR" try reading the Mississippi Code -the other parts of your post are correct though

Fair is Fair and All are Equal said...

It's high time we start having automobile steering recalls at Mercedes and Audi regardless of the fact that the other manufacturers are the ones installing defective steering devices.

It should not matter that Mercedes and Audis don't have these problems. In the interest of fairness and to avoid disparate impact, it's only appropriate that this thing be leveled out.

If Ford drafts a recall of 200,000 vehicles, the government needs to spread that number among the various companies so that they all shoulder the burden equally.

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