The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact
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The Prison to Homelessness Pipeline:
Criminal Record Checks, Race, and Disparate Impact
VALERIE SCHNEIDER*
Study after study has shown that securing housing upon release from prison is
critical to reducing the likelihood of recidivism,' yet those with criminal records-
a population that disproportionately consists of racial minorities-are routinely
denied access to housing, even if their offense was minor and was shown to have
no bearing on whether the applicant would be likely to be a successful renter. In
April of 2016, the Office of General Counsel for the United States Department of
Housing and Urban Development (HUD) issued much anticipated guidance deal-
ing directly with the racially disparate impact of barring those with criminal rec-
ords from public and private housing.
After decades ofseeming to encourage local public housing providers to adopt
harsh policies barring applicants with criminal records regardless of the nature
or recency of the crime, the Obama-era guidance from HUD represents a sea
change in federal policy and will force local housing authorities to grapple with
the potentially disparate impacts of harsh criminal record policies. The guidance
is particularly timely, given that HUD issued a rule clarifying the burden of proof
in disparate impact cases in 20132 and the Supreme Court affirmed that disparate
impact claims are cognizable under the Fair Housing Act in its 2015 decision in
Texas Department of Housing & Community Affairs v. Inclusive Communities
Project, Inc.3 Additionally, while the Trump administration seems focused on roll-
ing back Obama-era protections in some arenas, this guidance has remained in
place. Even ifwithdrawn by HUD, the guidance has already inspired local policies
* Associate Professor of Law, Howard University School of Law, J.D., George
Washington University Law School, B.S., University of Pennsylvania. The author expresses
gratitude to the Howard University School of Law, which funded her research through a sum-
mer stipend. The author would like to thank members of the Howard University School of
Law faculty who provided advice in the early stages of drafting. The author would also like to
thank Christopher Brancart and Ed Voci, who have provided invaluable insight on prior arti-
cles. Finally, the author would like to thank her research assistants Kenley Joseph and Bisi
Adeyemo for their thorough and thoughtful work.
1. See, e.g., CTR. FOR HEALTH & JUSTICE AT TASC, POST-PRISON HOUSING AND
WRAPAROUND SERVICES LINKED TO REDUCED RECIDIVISM (2014), http://www2
.centerforhealthandjustice.org/sites/www2.centerforhealthandjustice.org/files/publications/F
OJ%2006-14 _Issue2.pdf [https://perma.cc/LUL8-S886]; Christopher Moraff, Housing
First Helps Keep Ex-Inmates offthe Streets (and out ofPrison), NEXT CITY (July 23, 2014),
https://nextcity.org/daily/entry/housing-first-former-prisoners-homelessness [https://perma
.cc/7K7N-623G]; Doug Ryan, To Reduce Recidivism Rates, Turn to Housing Policy,
SHELTERFORCE (June 15, 2016), https://shelterforce.org/2016/06/15/to-reduce-recidivism-
rates-turn-to-housing-policy [https://perma.cc/S7BB-LG35].
2. See 24 C.F.R. § 100.500 (2017).
3. 135 S. Ct. 2507, 2525 (2015).](ViewImageLocal?handle=hein.journals/indana93&div=24&collection=&method=preview&ext=.png&size=3)
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The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact
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