'Within Constitutional Limitations': Challenging Criminal Background Checks by Public Housing Authorities Under the Fair Housing Act

Pursuant to federal “One Strike” legislation enacted in the 1980s and 1990s, many public housing authorities (“PHAs”) imposed blanket bans on tenants with criminal records — however minor, dated, or inapposite the offense. These zero tolerance policies go far beyond the requirements of the federal statutory regime. Practitioners have recently pointed to disparate impact liability under the Fair Housing Act (“FHA”) as a means of challenging the use of blanket bans on tenants with criminal records from public housing, given the well-documented racial bias of mass incarceration in the United States. This Note considers the viability of such a challenge, and argues that the FHA offers a more capacious tool for advancing the same goal: the duty to affirmatively further fair housing (“AFFH”). The AFFH provision responds to past federal complicity in creating housing segregation by imposing positive obligations on the Department of Housing and Urban Development (“HUD”) and its grantees to further the integrative goals of the FHA. No court has yet ruled on how the AFFH obligation affects a housing authority’s attempt to justify a policy with discriminatory effects. In light of HUD’s role in encouraging housing authorities to adopt strict tenant screening policies, this Note proposes that HUD exercise its enforcement powers by withholding funds from PHAs that automatically ban individuals with criminal histories from living in public housing.