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Herring, housing partners launch new tool to reduce housing discrimination

virginia politics
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During National Fair Housing Month and Second Chance Month, Attorney General Mark Herring and partners in the housing industry are launching a new tool that will reduce housing discrimination and increase housing stability and options for Virginians with previous nonviolent convictions.

Stable housing is a critical component to helping a person rebuild their life, provide for themselves and their families, and contribute back to their community in a meaningful way.

“Each one of us is more than the worst thing we have ever done. Virginians who have made mistakes in the past and served their time deserve a fair chance to access safe, stable housing as they work to rebuild their lives and provide for themselves and their families,” said Herring. “During National Fair Housing Month and Second Chance Month, I am encouraging rental housing providers to adopt this ‘ban the box’ housing policy that will keep our communities safe, while also expanding housing opportunities and preventing Virginians from being unfairly or unlawfully denied housing.”

The Virginia Fair Housing Law prohibits housing discrimination against someone because of membership in protected class, including race, color, religion, national origin, gender, sexual orientation, gender identity, age 55 and up, family status, veteran status, source of income, and/or disability. A facially neutral rental policy can still constitute unlawful discrimination if it disproportionately denies housing to one of these protected classes.

In Virginia, rental housing providers often maintain and apply a blanket ban on renting to anyone with a criminal conviction, regardless of the nature of the conviction or how long ago it may have been. Overly expansive policies like this can result in severely limited housing options or even unlawful discrimination, especially against Black Virginians and people of color who are disproportionately affected by the Commonwealth’s criminal justice system.

These one-size-fits-all policies can contribute to housing instability that can have severe negative impacts on Virginians, their families, and entire communities.

Even as the Commonwealth of Virginia and other employers have moved towards a “ban the box” hiring policy that considers the whole person and does not exclude applicants based simply on nonviolent or older convictions, the same approach has not yet been broadly applied to the housing industry.

The Model Policy for Tenant Screening consists of three steps that balance the goals of public safety and fair housing choice.

The policy instructs providers to first consider whether an applicant’s income and credit qualifies them for a rental

If an applicant is otherwise qualified, a housing provider should then conduct a tailored background screening to determine whether someone’s background makes them a good rental candidate, or whether more examination and information is needed. The model policy lists particular categories of criminal convictions that housing providers may want to collect and analyze

Finally, even if information in the background screening raises an issue, the housing provider should allow an applicant to provide additional evidence or information in order to perform an individualized assessment about an applicants’ suitability to rent a property

Guidance from the U.S Department of Housing and Urban Development explains the housing implications of relying too heavily on criminal records, “As many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort. When individuals are released from prisons and jails, their ability to access safe, secure, and affordable housing is critical to their successful re-entry to society. Yet many formerly incarcerated individuals, as well as individuals who were convicted but not incarcerated, encounter significant barriers to securing housing because of their criminal history.”

The HUD Guidance quantifies the harmful, disproportionate impact of many criminal screening policies on men of color. “Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration. For example, in 2013, African Americans were arrested at a rate more than double their proportion of the general population…in [2014]…African Americans were incarcerated at a rate nearly 3 times their proportion of the general population.

Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population, with Hispanic individuals comprising approximately 22 percent of the prison population but only about 17 percent of the total U.S. population.”

This unjust outcome perpetuates the entrenched racial inequities that Attorney General Herring has been working to eliminate. Moreover, discriminatory policies can open housing providers to expensive and protracted litigation. Attorney General Herring is encouraging housing providers to adopt the Model Policy for Tenant Screening that, if implemented and consistently applied, will prevent housing discrimination against home seekers as well as litigation against housing providers.

Research shows, despite outdated assumptions and stereotypes, there is little correlation between a criminal conviction and housing success, especially non-violent convictions that occurred many years ago. A 2019 study by four nonprofit housing providers found that convictions like marijuana possession, minor drug offenses, or alcohol offenses had no significant outcomes on housing success, and that convictions more than five years ago have no significant effect on housing outcomes. Research has shown that the model policy makes sense.

In 2020, Herring’s Office of Civil Rights and Assistant Attorney General Helen Hardiman worked for more than a year to build support for the Model Policy for Tenant Screening. As part of this effort, OCR surveyed stakeholders from a range of roles and positions in the housing industry and re-entry communities to gauge reactions to a model criminal screening policy.

The OCR found overwhelming support from all stakeholders who agreed that the model policy would further the goals of avoiding discrimination and litigation and opening up housing opportunities to more Virginians.

“Virginia’s property managers and housing providers have been and remain committed to the goal of providing safe, affordable housing to our residents and the ideals of fair housing. That commitment includes providing housing opportunities to those re-entering our local communities who represent no further risk to our residents, employees, or properties,” said Patrick McCloud, CEO, Virginia Apartment and Management Association.

“We are thankful for Attorney General Herring’s efforts to develop a model criminal screening policy for housing providers throughout the commonwealth. CHP believes that everyone deserves a chance at stable housing, and we are continually updating our procedures to ensure that all applicants are given fair and equitable consideration. We look forward to formalizing this work with a new screening policy,” said Andy Hall, Chief Operating Officer, Community Housing Partners (CHP) which owns and manages 78 apartment communities in Virginia.

“This policy considers landlord concerns about risk while increasing access to housing for people who have a history of involvement with the criminal justice system. The model policy is an important step forward to help Virginia landlords comply with the Fair Housing Act,” said Sara Pratt, a civil rights attorney at Relman Colfax PLLC, who authored the model policy.

“As we celebrate Fair Housing Month, the Virginia Fair Housing Office appreciates the support of the model criminal history screening policy by stakeholders across Virginia as we strive to further fair housing for all,” said Lizbeth Hayes, Director of the Virginia Fair Housing Office, Department of Professional & Occupational Regulation.

“There are not enough providers available that are both affordable and that have adopted a policy like this to be more inclusive of people who have past justice involvement who have, by standards of law, been rehabilitated. We trust that our judges and juries are put in place to make decisions about what is sufficient punishment for a crime then we turn around, as a society, and place another barrier in the face of an individual who is working hard to get back on track, in the form of a look back period that allows for the public/private sectors to deny individuals housing, employment, education, social services benefits, even the ability to be a school chaperone for their children. If we release over 90% of individuals back into society following a period of incarceration that the courts determined was sufficient, it is hypocritical, at best, to say a person is not fit to pay their hard-earned money for a safe and stable place to live for themselves and their families. Children suffer the most from the restrictive practices that most housing providers impose on people with past criminal convictions. As the research showed, there is almost no correlation between past convictions and a person’s ability to be a good tenant,” said Sheba Williams, Founder, Nolef Turns, Inc.


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