You're a private landlord, renting apartments in a building you bought with your savings from years of hard work and modest living. You take pride in maintaining your property, keeping it clean, comfortable, and attractive. You charge a fair rent and treat your tenants with courtesy and respect. Your tenants, in turn, appreciate the care you put into the building. And they trust you to screen prospective tenants wisely, accepting only residents who won't jeopardize the building's safe and neighborly character. That's why you only consider applications from individuals who are employed or in school, whose credit scores are strong, and who have no criminal record.
Most Americans would look at you and likely see a prudent, levelheaded property owner. Not the Obama administration. The Department of Housing and Urban Development warned last week that landlords who refuse to rent to anyone with a criminal record are in violation of the Fair Housing Act and can be prosecuted and fined for racial discrimination.
In a 10-page "guidance" issued on April 4, the federal agency announced that any landlord with a blanket policy of not renting to people with a criminal conviction is effectively discriminating on the basis of race or national origin. "Because of widespread racial and ethnic disparities in the US criminal justice system," HUD's new guidelines read, "criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. . . . [T]herefore such a practice would violate the Fair Housing Act."
The administration's argument is twofold. First, because blacks and Hispanics commit crimes and go to prison at much higher rates than whites, a policy of automatically rejecting applicants with a criminal past will have a "disparate impact" on different racial groups. And second, not all convictions are alike, and not everyone with a prior criminal record would be a risky tenant.
Both points are indisputably true. It isn't hard to find examples of ex-convicts who long ago learned their lesson and went straight, yet find it difficult to secure housing because background checks always flag their old offenses. HUD Secretary Julián Castro laments that too many landlords "use the fact of a conviction, any conviction, regardless of what it was for or how long ago it happened," to turn away prospective tenants, thwarting those who "are only looking for a fair chance to be productive members" of society.
Is it reasonable to call attention to the challenges that can shadow people with a criminal record for years? Perfectly. And if HUD were simply urging property owners not to paint with too broad a brush, and to remember that many former prisoners are peaceful and law-abiding, and may make admirable tenants, its guidance would be unobjectionable. But the leap made by the government — condemning any landlord with an across-the-board policy of not renting to former criminals as, in effect, a racist — is outrageous.
The Fair Housing Act makes it illegal to discriminate in the sale or rental of housing "because of race, color, religion, sex, familial status, or national origin." Felons and former prison inmates are not a protected class under the law. Having a criminal record is not a proxy for being a racial or ethnic minority, and "disparate impact" theory does not make it OK to penalize landlords who are concerned about the safety of their property and the security of their tenants.
Freedom of association is a fundamental human right, and the vitality of our economic life depends on it. A landlord who chooses not to do business with anyone who has a criminal record may not always end up making the wisest choice. But why should any person or entity except the landlord be entitled to make that choice? To be sure, a blanket rule against renting to ex-cons may exclude some potentially wonderful tenants — tenants that another property owner, less inflexible or more savvy, is free to snap up. Absent any evidence of impermissible racial animus, however, the government has no excuse to brand the landlord a de facto bigot, or to prosecute him or her for violating civil rights laws.
HUD's new guidance warns landlords not to rely on "bald assertions based on generalizations" about the risk of renting to people with criminal records. But human beings rely on generalizations all the time, especially when trying to predict the behavior of others. That there are exceptions to a general rule doesn't make the rule unreasonable. In general, a potential tenant's criminal record is a cause for concern. Recidivism rates in the United States are sky-high. Former lawbreakers are not infrequently future lawbreakers: More than 40 percent of offenders return to prison within three years of their release. A property owner with a blanket no-convicts rule is not being irrational, only cautious. And caution — even an abundance of caution — is not a race crime.
By all means, let HUD throw the book at a landlord who rejects only black and Hispanic applicants. Let it crack down on property owners who waive a no-criminal-record policy when the prospective tenant is white. But when a reasonable criterion is applied in a reasonable manner, the feds' only task should be to stay out of the way — not to use the Fair Housing Law as a pretext for unfairly persecuting landlords.