HUD'S 2016 LEGAL GUIDANCE: AN ADMINISTRATIVE DILEMMA

Minority individuals are disproportionately charged and convicted of crimes in this country. Making matters worse is the fact that many housing providers use criminal history housing applications that disparately impact minority housing applicants. In 2016, after the U.S. Supreme Court held in 2015 that disparate impact liability was cognizable under the Fair Housing Act, the Department of Housing and Urban Development (HUD) issued legal guidance to address how disparate impact liability specifically applies in situations involving housing providers' use of criminal history in housing applications. While the legal guidance could, and should, have significantly impacted the housing market and formerly incarcerated individuals' ability to obtain fair housing HUD's avoidance of notice-and-comment rulemaking when issuing its legal guidance creates an administrative dilemma that will diminish the legal guidance's impact. In light of this, I propose recommendations for HUD moving forward. HUD should either promulgate a proposed rule that is substantively similar to the 2016 legal guidance or, alternatively, promulgate a proposed rule that implements the ideas of the ban-the-box movement from the employment context into the housing context. In either situation, HUD should follow notice-and-comment rulemaking to promulgate the new rule.
TABLE OF CONTENTS Introduction I. Rationale and Context for HUD's Legal Guidance A. The Underlying Rationale B. Development of Disparate Impact Liability in Housing II. HUD's Legal Guidance and the [...]