The Journal of College and University Student Housing - Volume 44, No. 3 - 19

Background Checks in Housing

Application to Higher Education
how is this new huD guidance relevant to
college and university housing? recent cases
make clear that the fha applies to campus
housing (see luskin, 2015). two universities
recently settled lawsuits with the u.s. Department of Justice (DoJ) for violations of the fha
regarding discrimination against students with
disabilities. Both universities denied students
the right to have support animals in campus
housing, with the university of nebraska at
Kearney settling for $140,000 (DoJ, 2015) and
Kent state university settling for $145,000
(DoJ, 2016).
there is no literature to show how many
institutions use CBCs on student housing applicants, but the policy appears to be common
practice. news stories document incidents that
spur the implementation of these policies,
such as the case at the university of akron in
2006 (see university of akron, 2006a; university of akron, 2006b), and many institutional
4
CBC policies are found on college websites.
Because higher education institutions are
required to comply with the fha, when colleges and universities conduct CBCs and deny
housing to students based on criminal history,
they may violate the fair housing act if the rejected applicants are disproportionately from a
protected class.

Scenario. take, for example, a hypothetical scenario. a large (fictional) university requires all first- and second-year students to
live on campus, with certain exceptions. to
prevent campus crime, the university adopted
a policy that bars all registered sex offenders
from housing, and students with other criminal convictions are reviewed on an individual

basis by a committee of administrators. to
identify these students, the university requires
students to disclose criminal history on the
housing application and conducts additional
CBCs on a case-by-case basis. an assessment
found that of applicants denied housing due
to criminal history, 25 percent were africanamerican, 25 percent were latinx, and 50
percent were White, with 85 percent male and
15 percent female. By comparison, the general
university housing population was 15 percent
african-american, five percent latinx, and 80
percent White, with men and women divided
evenly. the disparities become clear. a likely
artifact of the inherent bias of the criminal
justice system, african-american and latinx
applicants were overrepresented in the sample
of students denied housing. Does this policy
violate the fair housing act? the answer
depends on the ability of a plaintiff to prove so
following the discriminatory effect test (Discriminatory effect, 2013).

Because higher education
institutions are required to comply
with the FHA, when colleges and
universities conduct CBCs and
deny housing to students based on
criminal history, they may violate
the Fair Housing Act if the rejected
applicants are disproportionately
from a protected class .

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The Journal of College and University Student Housing - Volume 44, No. 3

Table of Contents for the Digital Edition of The Journal of College and University Student Housing - Volume 44, No. 3