The disparate impact doctrine is unfair and illogical, as well as destructive. It has been used to invalidate exams for professional advancement that result in a racial imbalance in police force brass, for example, even when no actual discriminatory practices have been identified. It has been used to eliminate school discipline for classroom disruptions, because more black students than white students are being suspended, even though no bias has been shown in enforcement. Disparate impact has allowed incompetent teachers to keep teaching, and recently, its has become an rationale for not imprisoning convicted felons, because the current prison population is disproportionately black.
The Obama administration, being addicted to a race-biased view of American society in which all, or almost all, problems within the black community are ascribed to forces outside that community’s control, now has decreed that landlords risk federal investigations if they reject rental applicants based on the applicant’s undisputed criminal record. The Department of Housing and Urban Development (HUD)’s newly-released guidelines state…
“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics. 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.”
Sinister as this is, I’m sure it is sincere. The Obama Administration, obviously programed by the man who bears its name, is consumed by a bias in favor of non-whites, based on the assumption that they are inevitably victimized in U.S. society. Disparate impact could be properly used as a clue to uncovering actual bias and discrimination, but the presumption that disparate impact must be based on bias is itself a bias, and leads to intrusive and unfair regulations and Big Brother-style “Be Careful! We’re Watching!” warnings like this one.
The HUD policy warns that a landlord must be prepared to defend with hard data a policy of not renting based on a past criminal record. “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,” it says.
You have to be in thrall of ideological blindness or Bizarro World upside-down thinking to accept this. I am willing to say right now that I view any any individual with an arrest or conviction record as being a greater rental risk than any individual without such a record, absent other factors, and I am absolutely right. That’s not a bald assertion. That’s common sense, and based on fact and experience. Similarly, I view any any individual with an arrest or conviction record as being a greater risk to hire in a position of trust than than any individual without such a record, and I’m right about that, too. Moving on to the realm of personal relationships, if I have minor daughter and she is dating a man with a criminal record, she will be hearing from me that I view him as a greater risk as a serious life partner than any individual without such a record, and President Obama’s official race-baiters are not going to twist those completely legitimate and race-blind conclusions into a form of illegal discrimination.
Of course, as I read HUD, I am perfectly safe from the iron boot of the law if I refuse to rent to a white man with a criminal record, since nothing currently on the books protects either whites or criminals from the natural consequences of their actions, just as nobody will call me a racist if I tell my hypothetical daughter that that 20 year old with convictions of assault and drug dealing who has that tattoo of a snake on his neck is not a proper beau, and if she sees him again, I’m moving the family to Iowa and sending her to a seminary…as long as Snake is white. My guess is that the new guidelines also will allow black landlords to ding Black Snake or El Serpiente.
This is an anti-white, or more accurately a “Whites are presumed to be looking for reasons to victimize blacks and Hispanics” regulation. It is itself the epitome of bias and bigotry, masquerading as concern for “disparate impact.”
Here is another passage from HUD that is intellectually indefensible:
A housing provider with a policy or practice of excluding individuals because of one or more prior arrests (without any conviction) cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. 25 As the Supreme Court has recognized, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.”26 Because arrest records do not constitute proof of past unlawful conduct and are often incomplete (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), 27 the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual. For that reason, a housing provider who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.
This is willfully dishonest. Even the bureaucrats at HUD must know that in the supposedly unjust U.S. law enforcement system multiple arrests are the natural prelude to convictions. The claim that it doesn’t prove anything is a dodge; no, it doesn’t prove anything, just as flunking out of school doesn’t prove someone is a dolt. It’s a damn strong clue, though.
Trustworthy, law abiding citizens do not accumulate arrests. The guideline refuses to acknowledge that while one arrest for, say, assault, may mean nothing, four such arrests constitute an alarming pattern, and conviction or not, a landlord has a good reason to be wary of such an applicant. If I run a bank and a job applicant has five arrests for various kinds of theft, is that not a reliable basis on which to base my decision not to hire him? Not if he’s black, it isn’t…according to HUD’s “logic.”
The deceit here is palpable. That impressive-sounding SCOTUS quote is from a case with facts completely irrelevant to this issue. It’s also an old case, involving a state bar denying a man the opportunity to take a bar exam because he “lacked moral character” based on his arrest record. The court points out that the arrests were for labor organizing and based on his political views, as he had been blacklisted as a Communist. The statement quoted was an over-generalization, which is why dicta in cases are not conclusive, and why quoting 70 year old dicta from a case about political oppression to support a policy forbidding landlords from being wary of arrest records is outrageous.
Various commentators have concluded that the HUD policy as well as other statements suggest that Democrats are moving toward a a push to make criminal convictions a protected status, because of “disparate impact.”
An ethical, unbiased, fair and competent government would address its energies to reducing the disparate tendencies of various minority groups to violate the law, as well as holding those communities properly accountable for those disparities. Instead, the racialized Obama administration is choosing to deny the right of a landlord to responsibly assess the risks associated with criminal convictions and arrests, and to act accordingly, based on the landlord’s judgment.
13 thoughts on “HUD: Landlords Beware! Not Renting To Criminals Is Presumptively Racist”
Can I make timely comments, or what?
Now I can only speak from my Canadian experience, but as a landlord, you’d think that the way this law was written that passing the bar set by this law would be relatively easy. That isn’t to say that anyone should be made to pass over it, it’s stupid, and probably unconstitutional.
“The HUD policy warns that a landlord must be prepared to defend with hard data a policy of not renting based on a past criminal record. “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,” ”
Wouldn’t an appropriate answer to this be a small study gathering the data on recidivism and property damage inflicted by people who have served time? This wouldn’t even need to be case specific, someone do the legwork, and then have the report PDF’d to any judge seeing a case on this? Am I missing something?
I think there’s an element of 60s-leftoverism also here. After the upheaval that was the 1960s there were a lot of folks who’d been students then and gotten arrested during demonstrations and then been released with no charges brought. Some states started disallowing the question of arrest records only wrt employment either because of sympathetic politicians or the thought that past minor indiscretions should not shut people out of adult life.
The fact is most folks are looking for reasons to narrow down any pool of applicants and won’t dig deeper if someone pops positive for an arrest record. Arguably someone who gets an indecent exposure collar for getting drunk and taking a leak in an alley at 2 AM with no one else around is different than someone who gets it for exposing himself in a heavily populated park in broad daylight to a knot of schoolgirls. The thought is also that someone who gets collared while demonstrating against something they see as unjust is different than someone who gets collared for a violent brawl at a bar over a girl he was bothering. I don’t agree with this way of thinking, but it has kind of bled over into the politics of this nation and its subdivisions.
Unfortunately, it’s resulted in a presumption of invidious discrimination if a white person turns a nonwhite down for any reason, same as if you or I (white men) criticize the president we are told to put a sock in it, we just can’t stand to see a black man succeed.
The interesting thing is, I’m not sure that this new policy will actually do much about housing discrimination, if these studies on credit-check and drug test bans are any indication: http://marginalrevolution.com/marginalrevolution/2016/03/banning-credit-checks-harms-african-americans.html
The sad thing about this is that HUD housing neighborhoods are filled with law abiding poor white, black, and Hispanic people who are most likely to be victimized by these thugs. I think the HUD bureaucrats should be forced to live in these neighborhoods and see how they like living next to burglars and drug dealers.
Doesn’t the claim of institutional racism fall disproportionately on whites? If HUD presumptively concludes that a pattern of arrests or convictions is not an indicator of future behavior then why do they suggest that landlords are presumptively racist?
Don’t think too hard about this one, you will get hurt…
In response to Wayne, not all HUD developments house the poor. I live in one and my city is middle to upper class. The My lease forbids a criminal record and this is elderly (was 55+ yrs, but changed to 62) and handicapped housing. My particular housing is State and Federally funded and we get inspections every year, from both. If they don’t pass inspection, then either dept or both, cuts back on their funding until things are brought back to snuff. If a person wants to sell one of their mini-mansions they can move here as a downsize, and if they have assets, then they just pay the going street price. If one’s assets run out, then the rent is calculated using a formula.
I think if they ever allowed a person with a criminal record in this complex, and then there was a robbery, rape or any criminal activity, I would assume the State and Gov would be sued by the other tenants. I’d lead that war.
I previously owned a home and rented out a carriage house on the same property. I would NOT rent to a person with a criminal record. I do believe in second chances, but I run the bigger risk of damage to my property.
Lastly, my lease is so many pages long, with all of these addendum/attachments. It comes across real tough, yet I haven’t really seen certain things enforced the way they should be (like people’s children living here secretly. I remember when laws were passed saying that we couldn’t discriminate by not renting to a mother with children. Yet, it is still my property to rent and I don’t want children in my units.
What is happening to this country??!!
You are correct when you say not all HUD housing is limited to the poor. However, from what I’ve seen in my community, the elderly and handicapped wind up in assisted living facilities or board and care homes. The poor wind up in section 8 housing. For the problems associated with section 8 housing see this article: http://www.theatlantic.com/business/archive/2015/06/section-8-is-failing/396650/
“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.”
The HUDsters seem to assume every landlord is not only a racist, but they’ve all attended law school. I’d say this rises to the level of Authentic Frontier Gibberish. Legislating and strangling the marketplace by regulation and intimidation.
Landlord here. Everyone will fill out a credit report and criminal report before I’ll permit you to rent my house in central Florida. Don’t like it, piss off. Haven’t had a black tenant yet. I don’t care.
Comment of the Day?
Same here. Credit report and background check. We’ve only had one african american applicant, but they were about 10th in line after people who submitted applications before them. I will say this: most landlord’s make their decisions based on how all Contractual relationships work…based on the operative word “relationship”. If a landlord has even the slightest misgiving based on interacting with the person (you know, the way community and commerce really work on the low level), the landlord will find any reason to move on to the next applicant.
One of my applicants (a white person) actually started off the conversation “I know I’m not that reliable on payments, but I’m a great renter otherwise”. That needs no further commentary.
I do agree that Congress should eliminate prohibitions on employment practices that merely have a disparate impact on the basis of race.
There is ethical justification for not renting to people with criminal convictions such as theft or vandalism or murder.
But an arrest that did not result in prosecution means nothing other than the state wasting its (and the arrestee’s) time.
If none of those arrests resulted in prosecution, then the answer is no.
You had decried the use of kangaroo courts by university administration to punish sexual assault. You had decried proposals of prohibiting firearms purchases to those on the terrorist watch list. And yet, you think it is ethical for landlords to refuse to rent merely because of arrests that did not result in prosecution, let alone conviction. “Arrest, by itself, is not considered competent evidence at either a criminal or civil trial to prove that a person did certain prohibited acts.” Cf. Wigmore, Evidence, § 980a., cited in Schware v. Board of Bar Examiners, 353 U.S. 232, 241 fn6 (1957)
do you know where else arrests and convictions were considered the same thing?
“In Stalin’s Soviet Union, which they idolize, they WERE the same
Do you idolize the Soviet Union?