See pdf of the full letter here.
June 10, 2024
Regulations Division Office of General Counsel
Department of Housing and Urban Development
451 7th Street, SW, Room 10276
Washington, DC 20410-0500
Sent electronically via the Federal Register
RE: Proposed Rule “Reducing Barriers to HUD-Assisted Housing” 89 Fed. Reg. 25332
Dear colleagues,
The Poverty & Race Research Action Council (PRRAC) commends HUD for addressing the significant barriers in the existing screening process that limit low-income families’ access to federally assisted housing, including their right to freely move across jurisdictional lines using Housing Choice Vouchers.
PRRAC is a civil rights policy organization dedicated to the cause of fair housing, and the urgent need to address the continuing segregation of many low-income families of color in high poverty, low opportunity neighborhoods, a condition that is perpetuated by housing, land use, transportation, and education policies at every level of government. As we will discuss below, the disproportionate racial impact of strict criminal records screening is a function of over-policing in racially and economically segregated communities, and in the context of the voucher program, inappropriate screening practices can serve to intensify segregation. HUD’s duty to Affirmatively Further Fair Housing should guide its implementation of this proposed rule.
Portability and rescreening
The right to move with your voucher across public housing authority jurisdictional lines was guaranteed by Congress in the late 1980s. HUD subsequently developed “portability” rules in the early 1990s.1 Despite this, voucher families have always faced untenable obstacles to utilize their portability rights. Some improvements were adopted in 2015 through HUDs revised portability rule2; however, this new rule was extremely limited in scope, and its most important proposed features were removed from the final rule in response to public housing authority opposition.
PRRAC has repeatedly criticized the illegal, duplicative, and discriminatory practice of rescreening porting voucher holders by a receiving PHA. The voucher statute only grants PHAs’ authority to adopt elective screening practices to assess new applicants to the program, not existing participants utilizing their portability rights.3 Other sections throughout the statute reference PHAs authority to “deny or terminate” assistance. However, the applicant screening clause differs in that it only references PHAs ability to deny applicants.4 This is further supported by the statutory definition of “applicant” versus “participant.”
In the portability clause of the statute, Congress conferred a participant’s right to receive tenant-based voucher assistance anywhere in the United States with a participating PHA.5 The only limitation offered in this clause is that porting tenants are subject to terminations that align with regulatory rules 24 CFR § 982.552 and § 982.553.6 Inconsistently, when voucher holders attempt to exercise their portability rights, PHAs improperly use elective applicant screening processes that threaten the security of a family’s voucher not only upon porting but throughout their tenancy in the receiving PHA.
Additionally, rescreening porting tenants is inconsistent with HUD’s obligation to Affirmatively Further Fair Housing. As HUD has acknowledged, higher incarceration rates of Black and Latinx Americans are attributed to biases in the criminal justice system, rather than disparities in propensity to commit crimes.7 Rescreening participants based on their criminal records above the statutory minimum will have predictable discriminatory impact based on race and is not necessary to protect health or safety.8 In some cases, rescreening may block families’ access to better resourced, lower poverty areas. Further, rescreening gives a great deal of discretion to PHA staff to make case-by-case portability determinations, thus increasing the role of unconscious bias in the decision-making process. This is inconsistent with the shifting legal landscape concerning the use of criminal records in the screening process.9
PRRAC also opposes general rescreening of HUD-assisted tenants as it relates to transfers and continuing assistance. Existing program participants who have already been screened through their PHA should not face additional rescreening when transferring from one HUD-assisted program to another. This is especially true for tenants whose housing is undergoing RAD conversion. Rescreening should not jeopardize the stability and future of their housing, and their right to obtain a portable voucher under the choice-mobility provisions of the RAD program.
PRRAC commends HUD’s efforts to bring its portability rule into alignment with the statutory right created by Congress. We were pleased to finally see the inclusion of explicit language prohibiting this practice in §§ 982.301 and 982.355 and voice our strongest support for its inclusion in the final rule.10
Disqualifying criminal activity
Race is deeply implicated in HUD’s criminal records screening policies. Sixty-nine percent of voucher holders and seventy-one percent of public housing households are racial minorities.11 Communities of color disproportionately face aggressive policing strategies and excessive surveillance, particularly in neighborhoods with higher concentrations of poverty. This over-policing results in more frequent stops and interactions with law enforcement causing higher arrest rates. Despite ongoing reforms and heightened awareness following high-profile incidents of police violence, data consistently shows that Black residents living in high poverty areas are more likely to be subjected to aggressive policing compared to their white counterparts. The impact of these frequent police interactions and higher arrest rates is profound and perpetuates a cycle of poverty and disenfranchisement.
- Mandatory denials of admission for “currently engaging in” disqualifying criminal activity
Since its creation, this section of the regulation has been subject to ambiguity and incongruent application. Clarity is needed to ensure that families are not subjected to outdated and immaterial exclusions. PRRAC generally supports the need to define what it means to be “currently engaging in” disqualifying criminal activity. However, HUD’s proposed definition is far too broad. Twelve months cannot reasonably be considered “current” for the purposes of this section.
Many housing authorities have limited the definition of “currently engaging in” to be much more contemporaneous. For example, the Kansas City Housing Authority, the Authority of San Angelo, and Montana Housing considers activities that have occurred within six months to be “current.” The Saint
1 HUD implementation guide, HUD Notice PIH 2016-09, https://www.hud.gov/sites/documents/PIH2016-09.PDF.
2 “Housing Choice Voucher Program: Streamlining the Portability Process,” 80 Fed. Reg. 50564 (August 20, 2015).
3 “Selection of tenants: Each housing assistance payment contract entered into by the public housing agency and the owner of a dwelling unit shall provide that the screening and selection of families for those units shall be the function of the owner. In addition, the public housing agency may elect to screen applicants for the program in accordance with such requirements as the Secretary may establish. That an applicant or participant is or has been a victim of domestic violence, dating violence, or stalking is not an appropriate basis for denial of program assistance or for denial of admission if the applicant otherwise qualifies for assistance or admission.” 42 USC § 1437f (o)(6)(B) (emphasis added)
4 24 CFR § 982.4 “Applicant”; 24 CFR § 982.4 “Participant”
5 42 USC § 1437f (r)(1)(A)
6 42 USC § 1437f (r)(5); 24 CFR § 982.353 (b)
7 Office of Fair Hous. & Equal Opportunity, U.S. Dep’t of Hous. and Urban Dev., FHEO Memorandum 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 1, 2 (June 10, 2022) citing Emma Pierson, et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Human Behaviour, 736-745 (July 2020) (analyzing data showing that police search Black and Hispanic drivers more often than White drivers, but are less likely to turn up contraband during searches of Black and Hispanic drivers compared to searches of White drivers); id (showing that black drivers are less likely to be pulled over at night (when their race is obscured)); Nembhard, Susan and Lily Robin, Racial and Ethnic Disparities throughout the Criminal Legal System: A Result of Racist Policies and Discretionary Practices, Urban Institute (August 2021); A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, American Civil Liberties Union (April 2020) (citing data showing that Black residents are 3.6 times as likely to get arrested for marijuana possession than their White counterparts, despite similar usage rates), available at https://www.aclu.org/sites/default/files/field_document/marijuanareport_03232021.pdf.
8 FHEO Memorandum, supra note 15 at 2; Office of General Counsel, U.S. Dep’t of Hous. and Urban Dev., OGC Memorandum, Guidance on Application of Fair Housing Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016); See also, Carnemolla, Phillippa and Vivienne Skinner, Outcomes Associated with Providing Secure, Stable, and Permanent Housing for People Who Have Been Homeless: An International Scoping Review, 36 Journal of Planning Literature 508-525(2021); Fontaine, Jocelyn and Jennifer Beiss, Housing as a Platform for Formerly Incarcerated Persons, The Urban Institute (April 2012) https://www.urban.org/sites/default/files/publication/25321/412552-Housing-as-a-Platform-for-Formerly-Incarcerated-Persons.PDF.
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