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.