The Journal of College and University Student Housing - Volume 44, No. 3 - 16

Bradley D . Custer

background checks are used increasingly as a
risk management strategy (hughes, hertz, &
White, 2013), including for students who apply
to live on campus. however, recent guidance
from the u.s. Department of housing and
urban Development suggests that denying
housing to people with criminal history may
violate the fair housing act's (fha) protections against racial discrimination (Kanovsky,
2016). likewise, higher education institutions
may be vulnerable to discrimination litigation
when housing officers deny housing to justiceinvolved students (i.e., students with criminal
history). for housing officers, this paper offers
a critical perspective on the use of criminal
background checks in campus housing.
to begin, i present a review of the fair
housing act, including background on the
law and an explanation of discriminatory
effects liability. then, i consider how crimi-

Violent crimes committed
in university residence halls
shock even the most seasoned
campus administrators . Though
college students with prior
felony convictions are rarely the
perpetrators of on-campus crimes,
they are easy targets for the
media, campus administrators,
and policymakers .

nal background checks in university housing
could have a disparate impact on minoritized
students. i present the case of a fictional university and describe the steps that a plaintiff
must follow to sue a university for housing discrimination. next, i conduct a review of state
statutes and higher education system policies
to find where colleges and universities are required to conduct criminal background checks
for campus housing. given both the fha
analysis and the policy review, i discuss how to
defend against housing discrimination litigation and why it might be time to reconsider the
use of criminal history information in campus
housing, altogether.

BAcKGROUnD
as a pillar of the Civil rights movement,
the fair housing act (1968) confronted a
"long, painful history with discrimination in
housing" (yinger, 1999, p. 93) in the united
states. signed by president lyndon Johnson
on april 10, 1968just six days after the assassination of rev. Dr. martin luther King, Jr.-he
fha outlawed discrimination against people
based on race, color, religion, or national origin
in housing and real-estate transactions, including denying housing, offering different terms
and conditions, and using targeted advertising, among others (yinger, 1999). sex was
added as a protected class in 1974, and familial
status and disability were added in 1988 (mcCartney & pratt, 2003). the u.s. Department
of housing and urban Development (huD),
the u.s. Department of Justice, and state and
local housing authorities enforce the fha by
initiating housing complaints and by issuing
sanctions for violations (yinger, 1999). today,

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

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