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.

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities.

My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units that are currently missing. I suggest a series of reasons why, in the face of this potentially inefficient outcome, the market/society does not produce the required units.

The essay is conceptual in nature, not empirical. I recognize the issues associated with the quantification of often opaque costs and with their causal relationship to the lack of affordable housing. It is clear, however, that the costs are sizable and the correlations are strong and therefore, I believe, the hypothesis requires empirical study.

Professor of Law, Georgetown University Law Center. I would like to acknowledge the generous contributions of Josh Teitelbaum, David Hyman, and Gregg Bloche who, through several discussions with each, helped me to refine ideas presented here. I would also like to acknowledge the valuable research assistance of Gabriel Angelo Quevedo and the tremen- dous editing support of Betsy Kuhn.

I think sometimes you need to wonder where we were in 1968. It wasn’t just the Fair Housing Act that was passed in 1968. What happened in 1968? George Wallace was running for presi- dent. Hubert Humphrey was running for president, and Richard Nixon as well. It wasn’t just the assassination of Dr. King, we al- so had the assassination of Robert Kennedy. We likewise had the Vietnam War, and America was a mess. We had something else occurring in 1968. That was the Kerner Commission Report, that Dr. Crutcher mentioned had been instrumental in the fair hous- ing bill. And they made recommendations. I happened to have been a part of that last month in Minnesota, and had great occa- sion to talk with Fred Harris, who was the last surviving member of the Kerner Commission, Senator from Oklahoma. And also, Walter Mondale and I had a long time to talk.

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* Governor of the Commonwealth of Virginia, 1990–1994. Professor, L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. This Keynote Address was delivered by the author at the 2018 University of Richmond Law Review Symposium, The 50th Anniversary of the Fair Housing Act—Past, Present, and Future, on October 5, 2018, at the University of Richmond School of Law.

I am a Virginian by birth; I grew up in Lynchburg, Virginia. You may be asking yourself how a civil rights advocate grew up in Lynchburg, Virginia. Living in Virginia provided formative experiences for me that brought me to a fair housing-oriented life, and career. I started out learning about civil rights in a Presbyterian youth camp, on the campus of Hampden-Sydney College. I was in high school and we were studying Will Campbell’s book, Race and the Renewal of the Church. And they brought over two young black students from Prince Edward County who had never been to public schools.

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* Counsel, Relman, Dane and Colfax. This article was adapted from the Lunchtime Address that was delivered by the author at the 2018 University of Richmond Law Review Symposium, The 50th Anniversary of the Fair Housing Act—Past, Present, and Future, on October 5, 2018, at the University of Richmond School of Law.

It’s a powerful thing to mark the fiftieth anniversary of the Fair Housing Act of 1968, something that actually happened and has actually had an effect. I grew up in segregated Virginia, so I have a pretty powerful sense of the passage of time here. It’s given us the opportunity today to review and mark human progress, to take stock of where we are and to identify the efforts and issues of our time. The victories here have changed the nation, and the task is still daunting.