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Hot Topics in Fair Housing (and why they matter to your clients who are tenants)

Jennifer Gelman Prairie State Legal Services, Inc.Fair Housing Education Project(funded, in part, by a grant from the U.S. Department of Housing and Urban Development)

OutlineAffirmatively Furthering Fair HousingClients with Criminal RecordsFair Housing Concerns for Tenants in Foreclosed PropertiesApplying Fair Housing to Senior Living FacilitiesEconomic Accommodations: Can they ever be successful?

1. Affirmatively Furthering Fair HousingNeglected (until recently) provision of the Fair Housing Act:

HUD must: administer [housing] programsin a manner affirmatively to further the policies of [the Fair Housing Act]"

What does that mean?

42 USC 3608(e)(5).

The Meaning of AFFHAFFH is distinct from the non-discrimination provisions of the Fair Housing Act.

AFFH looks to overcome past patterns of discrimination and to ensure that housing is fully available to all residents of the community, regardless of race, color, national origin, religion, sex, handicap or familial status.

Why is affirmatively furthering newsworthy now?U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester County, N.Y., 668 F. Supp. 2d 548 (S.D.N.Y. 2009)

Westchester County, New York made $52,000,000.00 in false claims to the federal government when it:accepted affordable housing & CDBG fundscertified that it was complying with its AFFH obligationsbut chose sites for affordable housing units in a manner that perpetuated racial segregation.

And closer to homeSimilar suits (now pending) filed against:

Waukesha County, Wisconsin and Danville, IllinoisWhat does this have to do with legal aid housing cases?Public Housing Authorities must also certify to the affirmatively furthering fair housing requirements in their annual public housing agency plans (PHAPs).

24 C.F.R. 903To comply with AFFH, a PHA must:(1) Examine its programs or proposed programs; (2) Identify any impediments to fair housing choice within those programs; (3) Address those impediments in a reasonable fashion in view of the resources available; (4) Work with local jurisdictions to implement any of the jurisdiction's initiatives to affirmatively further fair housing that require PHA involvement; (5) and maintain records reflecting these analyses and actions.

A PHAs policiesincluding the policies under which it terminates assistance for our clientsmust operate to affirmatively further fair housing.

Do admission and termination policies at your PHA further the integration and equal access?2. Criminal RecordsReview of prohibited bases of discrimination under the Fair Housing Act:

Under 1968 Law:Added in 1974:RaceSex ColorAdded in 1988: Religion Familial StatusNational Origin Disability (Handicap)

Additional Protections under Illinois LawAncestryAgeMarital StatusMilitary StatusDishonorable Discharge from MilitarySexual OrientationOrder of Protection Status

No explicit prohibition against discrimination on the basis of criminal record under federal or state law.The Connection to Fair Housing(National Origin)

By 2007 Latinos make up 40% of newly sentenced offenders in federal prison, 1 in 3 of all federal inmatesnearly half of the Latinos sentenced in federal court for immigration offenses.

Taken from: The Problems Encountered by Ex-Offenders in Obtaining HousingThe Relationship between Crime, Race and National Origin, presented by George Lipsitz at the August 26-27, 2011 John Marshall Fair Housing Conference.

The Connection to Fair Housing(Race)

Blacks who are 13% of the drug users make up 37% of possession arrests, 56%of possession convictions and 74% of those sentenced for drug possession.

Taken from: The Problems Encountered by Ex-Offenders in Obtaining HousingThe Relationship between Crime, Race and National Origin, presented by George Lipsitz at the August 26-27, 2011 John Marshall Fair Housing Conference.

State prisons are now two-thirds Black and Latino.

Taken from: The Problems Encountered by Ex-Offenders in Obtaining HousingThe Relationship between Crime, Race and National Origin, presented by George Lipsitz at the August 26-27, 2011 John Marshall Fair Housing Conference.

The Connection to Fair Housing(Disability)Criminal conduct linked to emotional or developmental disabilitiesDisability and Prescription drugs: My half a Xanax case: PHA terminated voucher for drug-related criminal activity when participant arrested and pled guilty for carrying half a (previously prescribed) drug in an unmarked bottle.What Can Advocates Do?Possible Fair Housing Approaches

Reasonable AccommodationDisparate Treatment (Pretext)Disparate Impact And for tenants in/applicants to federally subsidized housing:Affirmatively Furthering Fair Housing?Argue for discretionRecent support from HUDJune 17, 2011 Importance of Second Chances Letter to PHA Directors from HUD Secretary Shaun Donovan DISCRETIONCONSIDERATION OF ALL CIRCUMANSTANCESHUD Second Chances LetterExplicit bans are very few:

Lifetime ban on admission for:Manufacture/Production of Methamphetamine on premises of federally assisted housingSex offenders subject to lifetime registration requirement under a State sex offender registration program

HUD Second Chances Letter, continuedPHA must establish standards to prohibit admission if current illegal use of drug or cause to believe that drug/alcohol use may threaten health, safety, or right to peaceful enjoyment of other residents.PHA must prohibit admission of applicant for 3 years after date of eviction from federally subsidized housing for drug-related criminal activity, BUT

PHA retains discretion to consider circumstances.

Emphasis on DISCRETIONPHAs may consider all relevant information, including factors which indicate a reasonable probability of favorable future conduct. For example, evidence of rehabilitation and evidence of applicant familys participation in or willingness to participate in social services such as counseling programs should be taken into consideration.

As President Obama recently made clear, this is an Administration that believes in the importance of second chances

ArgumentsArgue against unreasonable look back periods.Argue against the use of arrests as proof of criminal activity.Argue for the categorization of criminal activity and against suspect categories, for example crimes of moral turpitude.Argue for individual assessment of mitigating circumstances.

Taken from: When Discretion Means Denial: The Use of Criminal Records to Deny Low-Income People Access to Federally Subsidized Housing In Illinois, by Marie Claire Tran-Leung, Shriver Center3. Fair Housing & Foreclosure(Impact on tenants)April 11, 2011 National Fair Housing Alliance Study:Here Comes the Bank, There Goes Our Neighborhood: How Lenders Discriminate in the Treatment of Foreclosed Homes (An examination, in four metropolitan areas, of how financial institutions treat the foreclosed property they own depending on the racial composition of the neighborhood)What does the study reveal?

Four Metropolitan AreasConclusionsIn three of the four metropolitan areas, banks maintained properties in white or stably integrated neighborhoods in a substantially better manner than those in Black or Latino neighborhoods.

Implications for tenants in foreclosed properties?4.Senior Living Facilities & FHA Does the Fair Housing Act apply to all living arrangement?

DWELLINGS:Any building or part of it, designed, intended or used as a residence

Does it apply to assisted living and other Senior living facilities, where care is also provided? Yes.par

Assisted living facilitiesIn a facility, regulated by state licensing requirements and designed to provide care in addition to housing, can a tenant whose needs exceed the care provided request a reasonable accommodation?

What kinds of accommodations might a resident need?

What are the possible pitfalls peculiar to this setting?Undue BurdenFundamental Alteration

See: Reasonable Accommodations in Assisted Living: Crafting Effective Requests to Promote Housing Choice, Clearing House REVIEW, March-April 2011 Requesting an accommodation in an assisted living facilityWhat happens when the needed accommodation would violate the a requirement in the state licensing scheme?

Must a state licensing agency grant a reasonable accommodation to its regulations to make housing available to a person with a disability?ExampleClient is denied admission to assisted living facility for persons with dementia on the grounds that client has sever e dementia and the services provided at the facility cannot meet her needs.

Clients son suggests accommodation: An assistant, hired at the clients expense, to provide additional care.

Outcome?

Taken from: We Cant Meet Your Needs: Fair Housing Opens Doors to Housing with Services, by Aisha Anderson Bierma, Julie Nepveu and James Wilkinson, Clearinghouse REVIEW, September-October 20085. Economic AccommodationsEconomic or Financial Accommodations: An accommodation needed to overcome the economic barrier to housing caused by the disability

Frequently needed, but nearly impossible to get.

Why are these requests unsuccessful?Nexus Requirement: Nexus between disability and accommodation requested.Examples of Economic AccommodationsTiming of rent payment (to coincide with receipt of SSDI payments)Income minimumsCredit historyPast Rental history, or lack thereofEarly lease termination for tenant whose medical problems require closer proximity to hospital for treatment

Is it possible to solve the nexus problem?Are there circumstances under which an economic accommodation could be tied to the disability closely enough to satisfy the nexus requirement?

Long-term tenant in private rental unit, with steady income, becomes disabled, loses job, and qualifies for a Section 8 voucher. Landlord refuses to accept voucher.Tenant requests exception to Landlords no vouchers rule as reasonable accommodation. Outcome?

THANK YOU!

THE FAIR HOUSING EDUCATION PROJECT