The Journal of College and University Student Housing - Volume 44, No. 3 - 18

Bradley D . Custer

Criminal Background Checks

HUD warned: "Criminal history-

how, then, is discriminatory effects liability
connected to criminal background checking?
the issue stems from the demographics of
people involved in the criminal justice system.
to illustrate, consider the racial disparities
in federal and state imprisonment rates in
2015: per 100,000 adult u.s. residents of the
corresponding race, White people were imprisoned at a rate of 312, Black people 1,745,
and latinx people 820 (Carson & anderson,
2016). simply put, therefore, the use of criminal background checks (CBCs) to deny people
housing could have an unlawful, discriminatory effect because a disproportionate number
of people with criminal records are members
of protected classes (allen, Crook, & relman,
2014; oyama, 2009). said differently, minoritized people are more likely to experience
housing discrimination because they also are
more likely to have criminal records. several
legal scholars have previously developed this
argument (see allen, Crook, & relman, 2014;
oyama, 2009), but more officially, the u.s. Department of housing and urban Development
recently issued its own opinion on the matter.

based restrictions on access to

in april 2016, huD released guidance
that offers a clear rebuke to the broad use of
CBCs in housing. huD warned: "Criminal
history-based restrictions on access to housing
are likely disproportionately to burden african
americans and hispanics" (Kanovsky, 2016, p.
10). pointedly, huD asserted that "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 [the evidentiary] burden" (Kanovsky,
2016, p. 5). in addition, CBC policies must be
18

housing are likely disproportionately
to burden African Americans and
Hispanics ." Pointedly, HUD asserted
that "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 [the evidentiary] burden."

tailored to specific types of offenses and must
consider the nature, severity, and recentness of
the offenses (Kanovsky, 2016).
huD clarified one exception to the rule:
the fha permits housing officials to deny
housing to those convicted of drug manufacturing or sales, but not for possession, even if
the practice results in a discriminatory effect
(Kanovsky, 2016).
this guidance, coming from the nation's
top housing authority, sends a clear signal that
the racial disparities in the criminal justice
system cannot be ignored in the realm of
housing. the burden to operate lawful practices rests squarely on housing authorities,
and although the use of CBCs is not prohibited
by the fha, this practice may be difficult to
defend in court.

T h e J o u r n a l o f C o l l e g e a n d U n i v e r s i t y St u d e n t H o u s i n g

The Journal of College and University Student Housing - Volume 44, No. 3

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