HUD'S 2016 LEGAL GUIDANCE: AN ADMINISTRATIVE DILEMMA

• 成果类型: Editorial Material
• 署名作者: Goldstein, Matthew D.
• 署名单位: American University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2017
• 页码: 951-976
• 关键词: nonlegislative rules; interpretive rules; policy statements; prisoner reentry; agency guidance; UNITED-STATES; rulemaking; RETHINKING; BIND; DISCRIMINATION

摘要

Minorig individuals are disproportionately charged and convicted of crimes in this country. Making matters worse is the fact that many housing providers use criminal history housing applications that disparately impact minoriy housing applicants. In 2016, after the US. Supreme Court held in 2015 that disparate impact liabiliy was cognizable under the Fair Housing Act, the Department of Housing and Urban Development (HUD) issued legal guidance to address how disparate impact liabiliy specifically applies in situations involving housing providers' use of criminal history in housing applications. While the legal guidance could, and should, have significantly impacted the housing market and formerly incarcerated individuals' ability to obtain fair housing HUD's avoidance of notice-and comment rulemaking when issuing its legal guidance creates an administrative dilemma that will diminish the legal guidance's impact. In light of this, I propose recommendations for HUD moving forward. HUD should either promulgate a proposed rule that is substantively similar to the 2016 legal guidance or, alternatively, promulgate a proposed rule that implements the ideas of the ban-the-box movement from the employment context into the housing context. In either situation, HUD should follow notice-and-comment rulemaking to promulgate the new rule.