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X. Arbitrary Denials and Discrimination

To recognize that adequate housing is a right means that people cannot be deprived of the opportunity for adequate housing for reasons that are merely arbitrary or discriminatory.  In international law, discrimination in the recognition and protection of rights is strictly prohibited, and limitations on the right to housing are permitted only if they are embodied in law, compatible with the nature of the right, and for the purpose of promoting “the general welfare in a democratic society.”251 Current U.S exclusionary criteria for public housing fail these tests.

Arbitrary Exclusions

Public safety and the housing rights of others are legitimate grounds for restricting certain applicants from public housing.  However, current exclusionary policies rely on such broad-brush criteria that they are only tenuously, if at all, connected to the goal of public safety.  The result: many wind up unreasonably deprived of their best chance for housing, as well as for realizing the many other rights that flow from having a stable address.

The requirement in international human rights law that restrictions on rights be justified in light of specific interests “in a democratic society” entails that such limitations be strictly necessary, proportional, of limited duration, and subject to review.252  Legislative mandatory lifetime denial of public housing is neither necessary nor the least restrictive means to protect the safety of other public housing tenants.  Where exclusion from public housing results in homelessness or permanent separation from one’s family, the case can be made that the actual damage to individuals or society is disproportional to any speculative gain in public safety.  Furthermore, lifetime denials of housing are plainly not limited in duration.

It is likely that, in establishing the exclusionary policies discussed in this report, Congress was far more interested in sending a message of disapproval about specific crimes than in establishing reasonable protections for tenant safety.  In any event, Congress provided no public safety justification for imposing lifetime exclusions, rather than permitting a case-by-case consideration of the risks potentially posed by any individual applicant. 

Many PHA policies fail to establish a reasonable basis for excluding applicants.  As discussed above, many PHA policies utilize exclusionary criteria that bear no discernible relationship to tenant safety and that establish unduly lengthy periods of time between the offense and eligibility.  For example, Austin’s seven-year exclusion for everyone convicted of drug sales is not reasonable by virtue of the fact that an argument can be made that one person who sold drugs seven years ago might be a danger today to tenants.

Our review of PHA policies suggests that PHAs have made little effort to ensure housing applicants are not needlessly rejected.  Rather, the policies seem to reflect, at best, a scant regard for the housing rights of applicants, and at worst, a purely punitive approach to people with criminal records. 


International human rights law unequivocally affirms the equality of all persons before the law and prohibits governments from discriminating in policy or practice “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”253

Not all distinctions made by governments, however, constitute impermissible discrimination.  The Human Rights Committee has observed that “not every differentiation in treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”254 

Housing laws and policies that have a racially disparate impact, but are not reasonably designed to achieve a legitimate state purpose, violate the international human right to be free from discrimination.  The laws need not reflect a racially discriminatory purpose. 

Under state and federal constitutional law, racial disparities that arise from public housing policies are constitutional as long as they are not undertaken with discriminatory intent or purpose.255  But unlike U.S. law, international human rights law does not require discriminatory intent.  The International Convention on the Elimination of All Forms of Racial Discrimination (CERD or “the Convention”), to which the United States is a party, prohibits laws or policies which have “an unjustifiable disparate impact” on racial and ethnic minorities.256  The Convention specifically requires states parties to eliminate unjustifiable laws or practices that may be facially race-neutral, but that have the “purpose or effect” of restricting rights on the basis of race.257  It proscribes race-neutral practices curtailing fundamental rights that unnecessarily create statistically significant racial disparities even in the absence of racial animus.258

Data on the racial composition of people denied because of criminal records are not available.259  Nevertheless it is likely that criminal record exclusions from public housing have a significant racially disparate impact.260 

Racial and ethnic minorities are disproportionately represented among the impoverished of the United States: in 2002, 24.1 percent of blacks and 21.8 percent of Hispanics were below the poverty line.261  As a result, minorities are more likely than whites to need housing assistance and, indeed, racial and ethnic minorities constitute 70 percent of those who currently reside in conventional public housing.262

As illustrated below, African Americans are also disproportionately represented among those who have criminal records, and as such are much more likely to be rejected for public housing on this basis.  As noted above, criminal record exclusionary criteria used by PHAs are in and of themselves overbroad and therefore unreasonable as a means of promoting public safety.  If exclusionary policies have a significant racially disparate impact, and such an impact cannot be justified on public safety grounds, then the policies would contravene the provisions of CERD.

Racial Disparities in the Criminal Justice System

Racial disparities among those arrested, sentenced, and incarcerated for criminal offenses in the United States are immense:

  • According to the Federal Bureau of Investigation, nearly 27 percent of all those who were arrested in the U.S. were African American, despite the fact that they constitute approximately 12 percent of the U.S. population.263 
  • African Americans constituted roughly 44 percent of those convicted of felonies by state courts.264
  • African Americans and Hispanics constitute nearly 63 percent of all those incarcerated in local jails and state and federal prisons.265 
  • African Americans constitute 23 percent of those serving state probationary sentences,266 and 41 percent of those on federal or state parole.267  Of federal offenders under supervision, half were racial and ethnic minorities.268
  • By the end of 2001, of the nearly 5.6 million people who had ever served time in prison, nearly as many were black as were white, and an estimated 17.7 percent were Hispanics.269 
  • Racial and ethnic minorities account for fully two-thirds of those returning each year from prisons and jails.270

Data from individual states is even more striking:

  • Only 7 percent of the state’s population, African Americans account for 20 percent of all felony arrest and 31 percent of the prison population in California.271
  • Over 90 percent of those serving time for a drug offense in New York are African American or Latino.272
  • Although only one-quarter of the state’s residents, African Americans make up 77 percent of Maryland’s state prisoners.  Since 1990, nine out of every ten inmates entering state facilities has been African American.273
  • African Americans in New Jersey are thirteen times more likely to be incarcerated than whites, giving the state the dubious distinction of leading the nation in racially disparate incarcerations.  Eighty-one percent of all people in New Jersey prisons are black or Latino; they comprise only 27 percent of the general population.274

[251] ICESCR, art. 2.2, 4.

[252] This is a principle of interpretation that applies to restrictions clauses, common to both the ICCPR and the ICESCR, and is grounded in the jurisprudence of the European Court of Human Rights.  See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary  (Arlington: N.P. Engel, 1993), p. 378-79; Committee on Economic, Social, and Cultural Rights, General Comment No. 14, on “The right to the highest attainable standard of health,” August 11, 2000, art. 12, para. 28.  The Committee, analyzing the limitations clause of the ICESCR in the context of the right to health, noted that when a government seeks to impose limitations on the right to health on grounds of national security or the preservation of public order, its aims must be legitimate and “strictly necessary for the promotion of the general welfare in a democratic society.”

[253] ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, article 26.  The Committee on Economic, Social, and Cultural Rights has also specifically noted the prohibition against discrimination in the context of housing rights: “individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors.  In particular, enjoyment of this right must, in accordance with Article 2(2) of the Covenant, not be subject to any form of discrimination.” Committee on Economic, Social, and Cultural Rights, General Comment No. 4, para. 6.

[254] Human Rights Committee, General Comment No. 18,”Nondiscrimination,” 37th Sess., 1989, para. 13. 

[255] See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); see also Harris v. Itzhaki, 183 F.3d 1043 (9th Cir 1999) (applying Burdine’s requirement of intent to discrimination in public housing).

[256] UN Committee on the Elimination of Racial Discrimination, General Comment No. 14, para. 2.  In its concluding observations on the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the U.S. in 2001, the Committee on the Elimination of Racial Discrimination stated:

While noting the numerous laws, institutions and measures designed to eradicate racial discrimination affecting the equal enjoyment of economic, social and cultural rights, the Committee is concerned about persistent [racial] disparities in the enjoyment of, in particular, the right to adequate housing, equal opportunities for education and employment, and access to public and private health care.

A/56/18/380-407, August 14, 2001, 398.   

[257] CERD, para. 1, art. 1.

[258] See CERD, General Recommendation XIV(42), on art. 1, para. 1 of the Convention, U.N. GAOR, 48th Sess., Supp. No. 18, at 176, U.N. Doc. A/48/18 (1993).  See also, Theodor Meron, “The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination,” 79 The American Journal of International Law, 283, 287-88 (1985).

[259] HUD does not require PHAs to maintain statistics on those who were denied, much less on the race of those denied, and we did not find any PHA that did maintain such statistics.

[260] U.S. courts have indeed acknowledged the obvious fact that criminal records screening has a disparate impact on racial and ethnic minorities.  See, e.g., Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1295 (8th Cir. 1975).  The United States EEOC has also noted: 

The FBI’s Uniform Crime Reporting Program reported that in 1987, 29.5 percent of all arrests were of Blacks. The U.S. Census reported that Blacks comprised 11.7 percent of the national population in 1980 and projected that the figure would reach 12.2 percent in 1987. Since the national percentage of arrests for Blacks is more than twice the percentage of their representation in the population (whether considering the 1980 figures or the 1987 projections), the . . . presumption of adverse impact, at least nationally, is still valid.

EEOC Notice.

[261] U.S. Census Bureau, Poverty in the United States: 2002, table 1, p. 2. Note: the number for ”black” refers to the category of which is “black alone”—those who self-identified as black and not as any other race (e.g. black and Asian).  The number for "blacks alone and in combination" is 23.9.  The number for Hispanics refers to Hispanics of any race.  A report from the Institute on Race and Poverty also shows that rates of poverty among racial and ethnic minorities is three times as high as those of whites.  Racism and Metropolitan Dynamics: The Civil Rights Challenge of the 21st Century (April 2002), available online at:, accessed on October 21, 2004.

[262] HUD, Resident Characteristics Report (March 31, 2004), available online at:, accessed on April 8, 2004.  Seventy percent of all residents in conventional public housing are African American, American Indian, Asian, or Hispanic.

[263] “By race, 70.7 percent [6,923,390] of arrestees in 2002 were white, 26.9 percent [2,633,632] were black, and the remainders were of other races.”  Federal Bureau of Investigation, Uniform Crime Reports, Crimes in the United States, 2002, available online at:, accessed on April 8, 2004.  Note: data used in this report did not distinguish between white and Hispanic arrestees. 

[264] Matthew R. Durose and Patrick A. Lanagan, Ph.D., State Court Sentencing of Convicted Felons, 2000 (BJS, June 2003), table 2.1, available online at:, accessed on April 8, 2004.

[265] Paige M. Harrison and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2003 (BJS, May 2004, rev. July 13, 2004),  table 13, p. 11, available online at:, accessed on July 20, 2004.  Blacks constituted 43 percent of the total, while those of Hispanic origin constituted 19 percent. 

[266] BJS Statisticians, Correctional Populations in the United States, 1998 (BJS, September 2002), table 3.8, available online at:, accessed on April 8, 2004.

[267] Ibid., table 6.7, available online at:, accessed on October 21, 2004.

[268] BJS, Compendium of Federal Justice Statistics 2001 (November, 2003), table. 7.2, p. 93, available online at:, accessed on October 23, 2004.  As of September 30, 2001, 32 percent of federal offenders under supervision were African American, and 17.9 percent were Hispanic.

[269] Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (BJS, August 2003), p. 1, available online at:, accessed on July 6, 2004.

[270] Petersilia, When Prisoners Come Home, p. 26.

[271] Center on Juvenile and Criminal Justice, Texas Tough?: An Analysis of Incarceration and Crime Trends in the Lone Star State (2002) (CJCJ Report), citing Christopher Davis, Richard Estes, and Vincent Schiraldi, “Three Strikes”: The New Apartheid  (San Francisco: Center on Juvenile and Criminal Justice, 1996). The report is available online at:, accessed on April 8, 2004.

[272] CJCJ Report, citing Robert Gangi, Vincent Schiraldi, and Jason Ziedenberg, New York State of Mind: Higher Education vs. Prison Funding in the Empire State, 1988-1998 (Washington, D.C.: The Justice Policy Institute, December 1998).

[273] CJCJ Report, citing Vincent Schiraldi, Is Maryland’s System of Higher Education Suffering Because of Prison Expenditures? (Washington DC: Justice Policy Institute, March 1998).

[274] FAMMGram, vol. 14, issue 1 (Spring 2004), p. 6, citing The Sentencing Project, “State Rates of Incarceration by Race” (2004), available online at:, accessed on October 21, 2004.

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