Criminal History Screening in Mixed Income Developments: Getting a Fair Chance?
By Charles Kip, Chhaya Kotwani, Mac McCreight, and Mary Lu Mendonca
Every day, thousands of people with criminal histories—also known as justice-involved individuals (“JIIs”)—face barriers to housing access, a situation exacerbated by the current national housing affordability crisis.[1] JIIs are rejected for a number of reasons: policies that ban applicants with any arrest record regardless of final case disposition;[2] convictions for minor offenses and offenses with no implication for lease compliance; “one strike” policies that prevent re-application to federally-assisted housing for three years for anyone evicted from federally-assisted housing for drug offenses;[3] and the use of criminal records from unreasonably long ago to deny an application. Even when these practices are forbidden, it is sometimes difficult to enforce legal protections due to lack of right to counsel or lack of oversight. These practices have the inequitable and pernicious effect of depriving access to safe, stable, and affordable housing for a particularly vulnerable population.[4] Often JIIs are forced into unsheltered homelessness or unauthorized living arrangements with families in subsidized housing that strain relations and expose the entire household to eviction or termination of a subsidy.
Massachusetts municipalities have been updating affordable housing stock and building new units through a process that draws funding from a variety of sources to create developments with both market-rate and affordable units. This article describes the tenant selection policies that these developments are required to follow and provides suggestions and examples of how to structure these policies and laws more effectively.
The Process of Obtaining Criminal History
The permissible purpose of tenant screening is to assess an applicant’s likely future conformance with the obligations and terms of the new tenancy, including the ability to pay rent. In Massachusetts, one of the ways landlords typically assess candidates’ applications is to request a Criminal Offender Record Information (“CORI”) report, and landlords may reject any applicant for refusing to consent to a CORI check. [5] An applicant’s criminal history may also come to light through other means, such as a gap in housing history during a period of incarceration or from landlord references. Prior to an adverse decision based on a criminal background check, a housing provider must (1) provide the applicant with the records relied upon, (2) offer an opportunity to dispute the accuracy or relevance of the negative information, and (3) inform the applicant of the right to challenge the decision.[6]
Increasingly, landlords rely on private companies to perform the tenant screening function, notwithstanding that information collected and relied upon by these services is often incorrect or incomplete. Indeed, the largely unregulated tenant screening industry has come under repeated fire for lack of procedural oversight to ensure the accuracy of its data and for lack of transparency regarding the algorithms used to assess applicants’ suitability as future tenants.[7]
Fair Housing Act (“FHA”) and U.S. Department of Housing and Urban Development (“HUD”) Guidance
Tenant screening in all rental housing must be conducted in a manner consistent with federal and local anti-discrimination laws. In 2016 and again in 2022, HUD issued guidance that provides a roadmap for analyzing criminal history screening policies through a fair housing lens, focusing on the relationship among the FHA, the use of criminal records in housing decisions, and best practices concerning the use of criminal background screening. This guidance applies to both market-rate and federally assisted housing.[8] Generally, private housing providers have broad discretion in selecting their tenants. That discretion is limited, though, by federal and state non-discrimination laws, including provisions of the FHA that prohibit the refusal to rent, sell, or negotiate with someone based on a set of protected attributes.[9]
Additionally, according to HUD’s guidance, because “African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population[,] . . . criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.”[10] As a result, HUD’s guidance provides that exclusionary screening policies based on arrest records are inconsistent with the FHA.[11] Similarly, according to HUD’s guidance, criminal history screening based on offenses with little relevance to tenancy obligations, from unreasonably long ago, and lacking a demonstrable threat to the health and safety of management staff, other residents, or the physical premises, likely violate the FHA.[12] HUD’s guidance does, however, permit consideration of current criminal activity, as well as targeted criminal record policies, if necessary to achieve “legitimate nondiscriminatory interest.”[13] In short, according to HUD, blanket bans that categorically exclude applicants based on criminal records without consideration of the particular circumstances of each applicant, including the relevance of any conviction, age of the offense and offender, evidence of rehabilitation, changed circumstances, or other mitigating factors,[14] are unlikely to be justifiable under the FHA.[15]
Tenant Screening in Subsidized Units
For privately-owned subsidized units, screenings typically take place in two phases: the Public Housing Authority (“PHA”) conducts prescreening for the subsidy program and then the private owner conducts their own screening for suitability. The PHA’s screening policies should be set forth in the public housing Admissions and Continued Occupancy Policy (“Admissions Policy”) and the Voucher Administrative Plan.[16] The owners should have a separate tenant selection plan that lays out their processes. These documents cover how criminal records will be used in the process and what information will result in a denial. Examples of mitigating circumstances which can support a determination that a past criminal history will not adversely affect the tenancy going forward can be listed in the relevant documents, including the management plan screening procedure, to serve as guidance for applicants and staff. For HUD-assisted and subsidized housing, landlords are only legally required, without any discretion, to deny admission to a few narrow categories of applicants.[17] The same rules for denials—what history can be rejected and what redresses an applicant has for rejection—from private-sector market-rate rentals apply to PHAs as well, but the PHA may also be required to grant a hearing for a denial.[18] Ultimately, HUD gives substantial deference to PHAs to determine their own prescreening requirements according to their Admissions Policy and Voucher Administrative Plans.[19] Even within Massachusetts, any given PHA might have its own procedures, so long as they comply with the above rules.
Massachusetts state law requirements are similar to their federal counterparts for any units assisted by state-level programs, but the guidance is not as strict and PHAs are generally given more discretion to make decisions.[20]
A common funding source in mixed-income developments is the Low Income Housing Tax Credit (“LIHTC”). LIHTC gives developers a tool to acquire funding and, as a result, requires them to reserve units for lower-income applicants. These subsidies are separate from those administered by a PHA and follow different guidelines. The Massachusetts LIHTC Qualified Allocation Plan, administered by MassHousing, requires any entity applying for LIHTC to submit a tenant selection plan to further fair housing.[21] This plan must address not only how the owner will avoid discriminating, but also how the new development will affirmatively address the effects of segregation and serve the specific needs of the community where it is located.[22]
Policies That Can Reduce Barriers for JIIs – Examples from the City of Boston
Locally, the City of Boston has implemented multiple programs and policies in recent years that promote enhanced access to housing and seek to limit the discriminatory effects of criminal history screening. One such program is through the Boston Fair Chance Ordinance (“Ordinance”). The Ordinance applies to any housing provider who either receives city funding or has units created under the Inclusionary Development Policy. It is important to note that while the Ordinance is applied based on a provider’s participation in an affordable housing program, its guidelines apply to all units in a development held by the providers in question, including market-rate units. The Ordinance benefits JIIs by prohibiting consideration of several factors in tenant screening, including convictions of any type that are five or more years old and arrests that do not result in a conviction.[23]
Additionally, the Boston Planning and Development Authority (“BPDA”) requires developers to submit tenant selection plans as part of the approval process for new developments. These plans must contain an Affirmatively Furthering Fair Housing (“AFFH”) zoning component.[24] The AFFH component makes requirements of developers similar to the LIHTC Qualified Allocation Plan.[25] As to tenant screening, the developer must also submit to BPDA an Affirmative Fair Housing Marketing Plan (“Marketing Plan”) that is inclusive of the same Massachusetts protected classes as in LIHTC.[26] The statutory guidelines contain few specific rules[27] for how these practices are to be implemented and leave it to the BPDA to assess fairness.[28] Once the Marketing Plan is agreed upon by the developer and the BPDA, it acts as a supplement to the existing tenant screening laws described above.
Recommendations for Reform
Both private landlords and PHAs should develop clear tenant selection and screening policies that are implemented and enforced in a fair and nondiscriminatory manner in compliance with civil rights laws. Each applicant household should be treated equitably and considered individually, based on actual accurate records, and be afforded the opportunity to present explanations and mitigating circumstances, including evidence of rehabilitation and the ability to comply with the obligations of tenancy. Boston’s policies reflect the spirit of HUD’s guidance and the Fair Housing Act and promote housing accessibility for all members of the local community.
The most important aspects of making sure these programs and guidelines create equity are enforcement and education. A private owner may not be familiar with the procedures for subsidized units or the specific plan developed as part of the approval process. Additionally, the enforcement mechanisms usually rely on third parties, such as PHAs or the BPDA, to act on behalf of tenants. While this can be a positive, it requires active engagement by public entities in the administration and ongoing oversight of new developments. Tenants themselves are also empowered to identify and report violations, but there is no right to counsel for housing cases in most jurisdictions. Laypersons (whether tenants and housing providers) may not be aware of applicable housing laws, and neither tenants nor landlords may know when a violation occurs.
Conclusion
The burdens of our housing crisis fall disproportionately on JIIs and other vulnerable segments of society. Advocates should familiarize themselves with local rules and policies, but it is also important to create strong relationships with local administrative bodies to develop an effective partnership for the enforcement of housing rights.
Charles Kip is a student at Georgetown University Law Center and a multiple time intern for Greater Boston Legal Services (GBLS) as an Equal Justice America Fellow. He serves as the president for his school’s chapter of the National Lawyers Guild and is the founder and president of Students for Law School Reform.
Chhaya Kotwani is an attorney at GBLS. She consults with and represents several public housing tenant organizations in complex negotiations with housing authorities and developers during the public housing redevelopment process to ensure the preservation of deeply affordable units and tenant protections. After graduating law school in 2019, Chhaya also worked as a public defender and eviction-defense attorney before joining GBLS’s redevelopment team.
Mary Lu Mendonca is a Staff Attorney in the Housing Unit at GBLS, where she focuses primarily on redevelopment issues. She is on the Board of Directors of the Massachusetts Chapter of the National Lawyers Guild, and previously worked at the Boston Planning and Development Agency, the City of Somerville, and Suffolk Lawyers for Justice.
James M. (“Mac”) McCreight was a housing attorney at Greater Boston Legal Services from 1982 to 2022. He is currently an Access to Justice Fellow.
[1] See, e.g., Saneta deVuono-Powell, et al., Who Pays? The True Cost of Incarceration on Families, Ella Baker Center for Human Rights, 7 (Sept. 2015).
[2] See, e.g., Alexander v. Edgewood Mgmt. Corp., C.A. No. 15-01140 (RCL), 2016 WL 5957673 at *2–4 (D.D.C. July 25, 2016). But see Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions, PIH 2015–19 (HUD Notice PIH 2015-19) and H 2015–10 (HUD Notice 2015–10) (Nov. 2, 2015) (stating that arrest records alone (without a resulting conviction related to the applicant’s ability to performance tenancy obligations) cannot be “the basis for denying admission, terminating assistance or evicting tenants”).
[3] See 42 U.S.C. § 13661(a); see also Edgewood Mgmt., 2016 WL 5957673 at *2–4. But see HUD Notice 2015-10 and HUD Notice PIH 2015-19.
[4] See, e.g., Jocelyn Fontaine & Jennifer Biess, Housing as a Platform for Formerly Incarcerated Persons, Urban Institute, (May 7, 2012).
[5] See G.L. c. 6, § 172.
[6] See G.L. c. 6, § 171A.
[7] Reliance on such services has been challenged under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., the Fair Credit Reporting Act, 5 U.S.C. §§ 1681 et seq., and state law. See, e.g., Louis v. SafeRent Sols., LLC., D. Mass. 1:22-cv-10800, (Complaint) (May 25, 2022) (ECF No. 1); Conn. Fair Hous. Ctr. v. Corelogic Rental Prop. Sols., LLC, 369 F. Supp. 3d 362, 366 (D. Conn. 2019); see also Ariel Nelson, Broken Records Redux: How Errors by Criminal Background Check Companies Continue to Harm Consumers Seeking Jobs and Housing, National Consumer Law Center (Dec. 2019), Past Imperfect: How Credit Scores and Other Analytics “Bake In” and Perpetuate Past Discrimination, National Consumer Law Center (May 2016).
[8] See HUD, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 2016) (2016 HUD OGC Guidance); HUD, Implementation of the Office of General Counsel’s Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (June 10, 2022) (2022 HUD ASFHEO Guidance); see also 24 C.F.R. 100.500 (2013 regulation reinstated in 2023 explaining the burden-shifting framework for a disparate impact analysis).
[9] See 42 U.S.C. § 3604(a) (listing protected classes); see also 42 U.S.C. § 3603(b) (providing certain exemptions for landlords who meet specific criteria).
[10] See 2016 HUD OGC Guidance at 2.
[11] See id. at 5; see also HUD Notice PIH 2015-19, Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions at 3–4 (Nov. 2, 2015).
[12] See 2016 HUD OGC Guidance at 4–5.
[13] See id. at 7.
[14] In most cases, state and federal law requires landlords to incorporate reasonable accommodations under the Violence Against Women Act and for people with disabilities in these assessments. See 34 U.S.C. § 12491(b) (preventing housing providers from using criminal records resulting from being a domestic violence victim to deny a housing application); G.L. c. 186 § 25 (preventing housing providers from using a previous lease termination resulting from being a domestic violence victim to deny a housing application); Simmons v. T.M. Assocs. Mgmt., Inc., 287 F. Supp. 3d 600, 606 (W.D. Va. 2018) (holding that in some cases relaxing a criminal records policy could constitute a reasonable accommodation).
[15] Massachusetts state law has an equivalent to the FHA. See G.L. c. 151B § 4(6-8). This statute covers similar concepts to the FHA but identifies a more expansive set of protected classes.
[16] The Housing Choice Voucher Program, commonly known as Section 8, is one of the federal government’s major programs for assisting very low-income families, elders, and people with disabilities.
[17] 42 U.S.C. § 1437n(f)(1) (requiring exclusion of anyone convicted of manufacturing methamphetamines in federally-assisted housing); 42 U.S.C. § 13661 (requiring exclusion of those who currently use illegal drugs, abuse alcohol, or have been evicted from subsidized housing in the previous three years and have not completed an approved rehabilitation program or cannot show the circumstances leading to the eviction no longer exist); 42 U.S.C. § 13663(a) (requiring exclusion of lifetime registered sex offenders).
[18] HUD Notice PIH 2015-19 at 4.
[19] HUD has encouraged PHAs to revise these documents to better reflect HUD’s guidance on the use of criminal records. HUD, FAQS FOR NOTICE PIH 2015-19/H 2015-10.
[20] See G.L. c. 121B § 32.
[21] Commonwealth of Massachusetts Department of Housing and Community Development, Low Income Housing Tax Credit Program 2022-2023 Qualified Allocation Plan, 36 (2022) .
[22] Id.; compare G.L. c. 151B § 4, with 42 U.S.C. § 3604(a) (showing the explicit inclusion of several protected classes not listed in the federal rules).
[23] See Boston, Ma., Boston Fair Chance Tenant Selection Policy (Feb. 2017) (Fair Chance Ordinance or “FCO”). The FCO is more restrictive than the HUD Guidance. Under the federal rule, each of these factors may be considered in a denial (if backed up by documentation like police reports), though none may be the sole basis for rejection of an applicant. 2016 HUD OGC Guidance at 4.
[24] Boston, Mass., Zoning Code, Article 80-1.
[25] Boston, Mass., Zoning Code, Article 2-1 (giving the requirements for the AFFH component).
[26] Id.
[27] However, the guidelines the BPDA uses link to a template with stricter requirements than the statute. The publicly available version of this form is not the most current and the more recent versions that are used in ongoing developments but have not yet been published feature specific guidelines for use of commercial consumer background check software and a full restatement of the FCO that are generally more favorable to tenants.
[28] The Marketing Plan is approved and monitored by the Boston Interagency Fair Housing Development Committee. See Boston, Mass., Zoning Code, Article 2-1. Any enforcement of these agreements needs to be done by the city; unless explicitly incorporated into the agreements, there is no private action to be taken.
