Racism Knocking at the Door: The Use of Criminal Background Checks in Rental Housing

Valerie Schneider*

One of the harshest collateral consequences of an arrest or conviction is the impact a criminal record can have on one’s ability to secure housing. Because racial bias permeates every aspect of the criminal justice system as well as the housing market, this collat- eral consequence—the inability to find a place to live after an arrest or conviction—disproportionately affects minorities.

In 2016, after decades of appearing to encourage local public housing providers to adopt harsh policies barring applicants with criminal records, the Office of General Counsel for the United States Department of Housing and Urban Development (“HUD”) issued guidance instructing public and private housing providers to take in to account the potentially disparate effects of such policies on racial minorities (the “HUD Guidance”). Recognizing that African Americans and Latinos are “arrested, convicted and in- carcerated at rates disproportionate to their share of the general population,” HUD advised that any policy that “restricts access to housing on the basis of criminal history” may have an unlawful disparate impact based on race.

The HUD Guidance on the potentially disparate impact of the use of criminal background checks has remained in place, though it is expected to be rolled back like many other Obama-era policies; thus, the question has now become how municipalities and housing providers will interpret and give effect to the HUD Guidance. This article examines how one such municipality—the District of Columbia—has grappled with putting the HUD Guidance into effect via legislative changes.

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* Associate Professor of Law, Howard University School of Law. J.D., 2006, George Washington University Law School; B.A., 1998, University of Pennsylvania.
The author expresses gratitude to Dean Holley-Walker and the Howard University School of Law, which funded her research through a summer stipend, and to the individual members of the Howard University School of Law faculty who provided feedback in the early stages of drafting. Additionally, the author would like to thank Professor Carol Brown and the University of Richmond Law Review for putting together a thought-provoking symposium on the Fiftieth Anniversary of the Fair Housing Act. Finally, the author thanks her excellent research assistant, Candace Caruthers, for her thorough and thoughtful work.

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