Keeping with Obama Housing Rule DOJ Sues Landlords that Ban Tenants with Criminal Records

To keep with an Obama era housing rule that prohibits landlords from banning tenants with criminal records, the Biden administration is going after property owners that use background checks to screen perspective renters. Under the civil rights law known as the Fair Housing Act, housing discrimination is prohibited based on race or color, religion, sex, national origin, familial status or disability but Obama’s U.S. Department of Housing and Urban Development (HUD) issued an order in 2016 adding criminals to the protected class. In the document Helen R. Kanovsky, then HUD General Counsel, wrote that 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 and that violates the Fair Housing Act even if the discrimination is unintended. “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,” HUD’s top legal official wrote.

To abide by the Obama order, the Biden administration has aggressively pursued landlords that do not want to rent to criminals. This month the Department of Justice (DOJ) filed a lawsuit against the owners and managers of a residential property in Kinloch, Missouri for engaging in a pattern or practice of race and/or color discrimination against perspective black tenants by banning renters with felony convictions and certain other criminal histories. The agency alleges in its complaint that the defendants violated the Fair Housing Act under the same skewed interpretation delivered by Obama’s HUD General Counsel. The residential multifamily rental apartment complex, Suburban Heights, is around 15 miles from St. Louis and has 102 units in six two-story buildings. Since 2015 management has enforced a categorical ban on tenants with criminal histories, “which are known to have significant statistical disparities,” the DOJ writes, adding that by choosing to use that policy defendants deterred prospective black tenants from applying to rent and excluded them from housing opportunities at their property.

“It is well documented and known that there are statistical Black-White racial disparities in conviction and incarceration rates,” the DOJ complaint states. “Incarceration data indicates that Black individuals are significantly more likely than White individuals to have the types of convictions covered by Suburban Heights’ Criminal History Ban. This is true nationwide and, to an even greater extent, in St. Louis City and St. Louis County. Black individuals are at least four times, and often more than five times, more likely than White individuals to be incarcerated in prisons, both at any given point in time and over the course of their lifetimes.” As an example, the agency offers that the national black-white disparities in prison incarceration rates are consistently five to one. In the St. Louis area, the black-white incarceration disparity is worse at seven to one, according to the federal complaint. “These Black-White statistical disparities in incarceration rates are an appropriate proxy and the best available evidence for the statistical disparities in rates of the types of convictions covered by Suburban Heights’ Criminal History Ban,” the lawsuit says, adding that the property managers chose to adopt and enforce a policy which predictably excludes black tenants at a higher rate than white tenants.

The DOJ is using the same argument to go after local governments and law enforcement agencies across the country that have implemented measures to curb an epidemic of crime, drugs and gang violence in rental properties. The popular laws, enacted by thousands of cities nationwide are commonly known as “crime-free” and “nuisance” programs that restrict housing based on criminal and arrest records and punish landlords and tenants with excessive calls to police and emergency services or those engaged in criminal activity. To improve living conditions in mainly low-income rentals 2,000 cities across 48 states have adopted crime-free and nuisance policies, according to the DOJ, which has legally challenged many of the measures in the last few years claiming that they are discriminatory and therefore violate federal law because they “unfairly penalize communities of color.” Assistant Attorney General Kristen Clarke, who heads the Biden DOJ’s Civil Rights Division, claims that “even when well-intentioned, these programs can disrupt lives, force families into homelessness and result in loss of jobs, schooling and opportunities for people who are disproportionately low-income people of color – all in violation of federal law.”

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