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The Long Road Home

Banning the Use of Criminal Records in Tenant Screening

By Alex Bergstrom & Merf Ehman Seattle City Council voting on no-lookback amendment

For those of us who have not been through the justice system, what can be helpful is to frame reentry by using a thought experiment, borrowed from the public testimony of Seattle-area advocate Susan Mason. Think about the worst thing you have ever done. Actually pause, and take a second to remember what that was. Recognize how the memory of that deed makes you feel. Recall the consequences, legal or otherwise, and the accountability you may have taken for your actions. Now imagine that no matter what price you paid, for the rest of your life you will be required to explain that mistake to a stranger every time you try to find a place to live. As extreme as that sounds, this is the reality of tenant screening across the country.

Starting the Journey

During the mid-to-late 2000s, Columbia Legal Services increasingly heard from clients and community groups such as the Tenants Union that they could not find housing because they had a criminal record. Folks turned away from housing had been out of prison or jail for anywhere from days to decades.

In response, we applied for and received in 2009 a Poverty and Race Research Action Council grant to conduct research on housing issues and disparate impact. We analyzed whether a claim for disparate impact could be brought under the Fair Housing Act for applicants’ rejection based on criminal or eviction records. Our research evolved into a 2010 manual (updated in 2015).

This research served as the basis for the next steps in our advocacy. We planned either to file a lawsuit or to seek local legislation to remove the barrier to housing that a criminal record posed. Although most federal appellate courts held that a disparate impact claim could be made under the Fair Housing Act for rejecting housing applications based on criminal or eviction records, we were concerned about the likelihood of success of litigation because few plaintiff cases were successful. We discussed the issue with our partner organizations and decided to look for possible lawsuits but to focus on policy work right away. In 2010 we began representing the Tenants Union on issues related to housing access and criminal records. Our goal was to pass a Seattle ordinance to remove barriers to housing for people with criminal records.

The Seattle Office for Civil Rights was also contacted by community groups to ask the agency to take on the discriminatory impact of criminal records on people of color. The Office for Civil Rights convened the Criminal Records Roundtable to bring together groups working on these issues. The roundtable included community groups, civil rights enforcement agencies, legal aid groups (such as Columbia Legal Services), and advocacy organizations from across the country. One of the roundtable’s goals was to ensure that government agencies enforcing fair housing laws were permitting people to file disparate impact claims. On this issue the roundtable participated in a forum sponsored by the Office for Civil Rights in November 2010. The forum had a huge turnout, with significant community interest in the issue.

Folks turned away from housing had been out of prison or jail for anywhere from days to decades.

The Office for Civil Rights, in partnership with community groups, proposed in 2011 a city ordinance that would prohibit housing providers and employers from discriminating against people with a criminal record unless it was related to the housing or job. The ordinance would require that landlords and employers conduct an “individual assessment” to determine whether the applicants posed a safety risk before denying them housing or employment. We worked hard to advocate the ordinance but were met with tremendous pushback, including a scathing editorial column, from the media and the general community against the ordinance. Landlords argued that they (1) were protecting the public, other tenants, and employees by not exposing them to these people—"ex-convicts,” “offenders,” and “criminals”; (2) were not social workers and should not have to determine whether an applicant with a criminal record is rehabilitated; and (3) would be sued if they rented to someone who had a criminal record and hurt someone else or damaged property.

Our response to the backlash was to argue that (1) people of color were disproportionately represented in the criminal justice system and so refusing to rent to people with criminal records was unlawful discrimination based on race; (2) studies showed that after a few years people with criminal records were no more likely to commit crimes than the general public; and (3) a 2009 study in Seattle supportive housing demonstrated that having a criminal record was not a factor in whether a tenant could comply with lease obligations.

In reviewing the advocacy with our partners, we concluded that, among other shortcomings, we did not have a clear messaging strategy.

To our dismay, these arguments were not effective. They did not have the same appeal to the public and elected officials as did the landlords' rhetoric. The mayor asked the Office for Civil Rights to withdraw the ordinance. Since the Office for Civil Rights had been leading on the issue, this move left a huge gap in advocacy around the ordinance. Columbia Legal Services and others in the roundtable continued to advocate the ordinance, but gathering support for the ordinance proved challenging due to the political climate. We decided to stop our advocacy efforts and regroup. In reviewing the advocacy with our partners, we concluded that, among other shortcomings, we did not have a clear messaging strategy and we needed more legal research about negligence liability and a survey of all the current sociological research on criminal records and housing.

At the same time we were debriefing our failed campaign to pass the ordinance, Seattle City Council member Bruce Harrell contacted our group about the employment piece of the legislation. He decided to create legislation called the Jobs Assistance Ordinance and to table the housing piece for a later time. Employers opposed the proposed employment ordinance but not to the extent of the opposition to the proposed housing ordinance. With our clients’ support, we spent the next two years advocating the employment ordinance. The strategy was to fight for its passage so that it would lead to an ordinance on criminal records and housing.

We tried something new and hired a messaging consultant to assist us in our campaign. He helped us create talking points and a media strategy to share our message and respond to criticism. We learned that preparing to talk with the media, testify, or meet with public officials can take just as much work and practice as preparing for court. Learning to lead with emotion rather than facts and statistics was challenging. We developed the following guidelines for our communication on the ordinance.

When talking about the current system:

USE: “It’s confusing and doesn’t give employers clear guidelines.”

USE: “It unfairly punishes people who have already served their time.”

When talking about what the ordinance does:

USE: “It gives a clear set of rules to employers so that they know when and how to conduct criminal background checks.”

USE: “It will help ensure that those who have paid their debt to society have a real chance to turn their lives around.”

When talking about our opponents:

USE: “A few employers who are putting their own interests above everyone else’s.”

When talking about us:

USE: “A nonpartisan coalition of citizens and organizations believing that all people should have a fair chance at employment.”

Pushback from the general community waned as knowledge about “reentry” increased. In June 2013 the Seattle City Council unanimously passed the Job Assistance Ordinance.

After that ordinance’s passage, we refocused on the housing angle, but we still did not have enough political or community support for it. Instead we worked with city council members to convene a group led by the Seattle Office of Housing to consider how city-funded affordable housing providers could remove barriers to housing for applicants with criminal records. Over the next three years we participated with other advocates, community groups, and affordable housing providers to improve tenant screening. Although we felt frustrated with the pace of this work, we stayed involved to help shape progress from the periphery. Following the work of this group, several large affordable-housing providers changed their policies on tenant screening and criminal records. The City also amended its levy-funded provider rule to require that these providers work to remove barriers to housing people with criminal histories. We worked with housing providers to develop best practices for tenant screening. In 2016 the City Council passed a resolution supporting the best practices we developed.

At the same time we continued to research the legal and sociological issues of housing for people with criminal records. We worked with a researcher and Ph.D. candidate at the University of Washington to examine the sociological research on whether a criminal history affects a person’s ability to be a good tenant. We found no sociological studies that supported the argument that having a criminal record and being a bad tenant are correlated. We decided to write a law review article on these issues; it was published in 2015.

We were asked in 2014 to participate in the mayor’s Housing Affordability and Livability Agenda group to consider solutions to Seattle’s affordable-housing crisis. We decided to advocate a solution to the problem of finding housing for people with criminal records through the mayor’s group since we still did not have enough public support to pass an ordinance. We succeeded in garnering support from the mayor’s group. Our solution to the problem of finding housing for people with criminal records became one of the group’s top recommendations. The mayor added it to his Housing Affordability and Livability Agenda implementation plan, in which he tasked the Office for Civil Rights with developing a 2016 stakeholder group for input on a proposed housing and criminal records ordinance.

During this time frame—2013 to 2015—we received criticism from the community that our advocacy was not community-based or led by those most affected by the issue. We were acting as “experts” rather than as lawyers for community movements. In response we attempted to change the way we conducted our advocacy to include the urgent need to undo institutional racism.

Changing Course: The FARE Coalition

We have always known that much of our work at Columbia Legal Services is in response to different manifestations of racism. But only more recently have we begun to grapple with the ways that our internal structure, culture, and practices mirror those of the institutions we fight. In 2015 our equity work took a new direction. Columbia Legal Services' staff of color challenged internal practices, while community groups challenged Columbia Legal Services’ role as a gatekeeper—a part of the legal institution—related to policy work. We began changing our internal systems and developing and refining our “Race Equity Toolkit,” which we use on all new advocacy considerations. The basis for the toolkit comes from the Sargent Shriver National Center on Poverty Law’s Racial Justice Training Institute, which two of our staff had attended that year. The toolkit requires us to take direction from people and groups directly affected by the issues in question, focus on systems, and continue to challenge racism throughout all advocacy.

We were still representing the Tenants Union, which directed us to pursue the work from a community-organizing perspective, so that specific policy responses came directly from the community. The Fair and Accessible Renting for Everyone (FARE) coalition launched its campaign at a December 2015 community event featuring a spoken-word artist, a panel discussion with affected people, and testimony. We heard from the public, advocates, and city council members. From that event FARE membership grew. Thanks to thoughtful and dedicated outreach, turnout over the first few months was strong, with representation from many of the communities disproportionately burdened by the justice system. FARE ultimately had over 20 organizational sponsors and around 300 individual members. After robust discussions, the coalition agreed on an advocacy campaign that would bring cultural relevance to standard policymaking. First, FARE would develop a visual storytelling exhibition using the model of PhotoVoice. Second, FARE would draft a bill proposal from scratch, using language from the people most affected.

PhotoVoice is a project through which people tell their own stories using photography. It had been used successfully by a member of the FARE coalition in a legislative campaign, and it appealed to FARE for its blend of authenticity and creativity. We planned exhibitions in each of the seven city council districts and a final large display at Seattle City Hall. As we began to implement the plan, we quickly learned the importance of flexibility. When we had trouble tracking down the cameras, we had to cut out the smaller district exhibitions. And when, despite our best efforts, we retrieved only one of the cameras sent out into the community, we reluctantly had to scrap PhotoVoice altogether.

Only more recently have we begun to grapple with the ways that our internal structure, culture, and practices mirror those of the institutions we fight.

Despite the harsh reality check, we were still on track to complete our "community law drafting" process by the end of 2016; this would leave the first half of 2017 for the legislative push. FARE held several meetings around the city to build a foundation of priorities. We found consensus that FARE members wanted to limit a landlord's right to examine criminal histories as much as possible.

Concurrently the City had formed its own committee to examine the Housing Affordability and Livability Agenda recommendation. Columbia Legal Services, along with other members of FARE, landlords, a tenant-screening lobbyist, and other groups, had a seat at that committee. Thanks to our overlapping memberships in both FARE and the City’s committee, we knew that the City’s committee would likely recommend legislation featuring a "lookback period," which is an amount of time postconviction during which a criminal record could be considered by landlords. Given the long history of failing to pass a law on this issue, any limitation on a landlord's use of records seemed like a positive compromise.

For this reason, much of the FARE deliberation during the “community law drafting” was on the length of the lookback period and on whether we would be willing to compromise. In retrospect, we see that in a room full of people directly harmed by this issue, we were discussing what level of continued oppression we might be happy to accept. This was untenable. Much of activism's value lies in its freedom from institutional political constraints; we were trying to force grassroots activism into the institutional written framework it meant to dismantle.

In retrospect, we see that in a room full of people directly harmed by this issue, we were discussing what level of continued oppression we might be happy to accept.

In early 2017 FARE was behind schedule in drafting its proposed ordinance, while the City's stakeholder process was accelerating. Having fallen short on our two main campaign goals (creating a visual storytelling exhibition and drafting a law from scratch), the FARE coalition met for a reassessment. The data and the stories FARE gathered supported the one idea we all agreed on—to ban the use of criminal records in tenant screening entirely—but the City's stakeholder group placed a two-year lookback period in the proposed ordinance. Some FARE members were pleased with this result as conversations locally and elsewhere commonly included lookback periods of seven years or more. But FARE members ultimately decided to continue to fight for the agreed-upon no lookback period.

When public testimony began on the City’s proposed ordinance, FARE was ready. The first public hearing was held on the evening of July 13, 2017. Evening hearings are atypical, but council member Lisa Herbold knew that standard morning hearings were often hard for working people and family caretakers to attend. Roughly 100 people came to the hearing, 60 of whom signed in to testify. Of those, only 7 opposed the bill. Included in many of the supportive testimonies was a call to amend the proposal to do away with the lookback period. At the completion of testimony, the council members, with participation from several FARE allies, debated the proposal with a panel of stakeholders. Panelists highlighted the research—the law review article we drafted that found no evidence linking criminal records to unsuccessful tenancy—that supported the bulk of the testimony.

As we brought the same message to more council members in the following weeks, opponents could not identify a single source that showed criminal records predicted a bad tenancy. A significant turning point came when a council member wrote an editorial supporting an amendment to have no lookback period whatsoever. We were tense when the time came on August 8, 2017, for a committee vote on the no-lookback amendment. Our tension turned to excitement when that amendment passed. The full council voted the next week on August 14, and the improved ordinance passed 8 to 0. Beginning February 2018, landlords renting in Seattle will no longer be allowed to inquire about an applicant’s criminal record.

Next Steps and Lessons Learned

We have a lot more work to do to clear the path for people—especially low-income people of color—to access permanent, affordable, and safe housing. The brutal reality is that most people who have criminal records cannot afford to live in Seattle. Beyond that, we have seen historically that, intentionally or not, many landlords find new proxies for race when others are outlawed. But this ordinance was an important precedent to set. We know that the criminal justice system unfairly targets communities of color, and so, by extension, to use criminal records as a screening tool is racist. The City of Seattle has ended this practice, and that is historic. The question for the FARE coalition now is how to build on our success. We will likely try to replicate the law in a more affordable jurisdiction outside Seattle as well as support other jurisdictions engaging in this work.

We learned several lessons during this campaign that we will heed in our future work.

Stay Intentional About Race. 

When work picked up, and especially when we could smell victory, we held fewer critical conversations about how the outcome might look. Early on we always reminded ourselves to ask, How will this play out in a racist world? At some point we lost that perspective as the work began to move quickly. We had concluded too easily that because criminal records disproportionately harmed people of color, easing the burden on people who had criminal records was good for race equity. But disproportionality in housing could worsen in Seattle if white people with criminal records end up benefiting more from this ordinance than people of color with criminal records.

Remember that We Are Gatekeepers.

This reminder is a top priority. The work it takes for directly affected people to engage in advocacy like this should never be minimized. As paid gatekeepers, we have a responsibility to make the keys to power available whenever and wherever a person needs them. We were lucky to have the Tenants Union’s organizing expertise, which ensured an open and accessible process. We may have averaged only 10 to 15 participants per meeting, but our email list was 350 people strong, and we encouraged every member to have a voice. Some people could never make a meeting in person, and that was fine. We were diligent about taking and sharing notes; relaying input from people who shared it by phone, email, or in person; and treating the voice that can only speak once the same as the voice that speaks at every call. We offered food at meetings, welcomed families, and varied the times of day and meeting locations to try to reach different people. We also paid members of community forum panels. Beyond our meetings, we devised a system for storytelling and media access allowing levels of participation to accommodate different communication styles and privacy preferences.

Step Back, but Be Ready to Step up. Lawyer, Do Not Lead.

The intent at Columbia Legal Services and the Tenants Union was to follow and elevate community advocates. We wanted to attend FARE meetings as members and help as lawyers but hoped the organization and coordination could be done by community members. Eventually we realized that while a long-term goal is to undo the structures we uphold as gatekeepers in favor of more community-based policymaking, we had the time and money to organize, and other members had not. For many, doing unpaid organizing when they are looking for housing and work and caring for a family is impossible. We had to be willing to step up. But when we found ourselves in a role of perceived authority as organizers, space providers, meeting facilitators, and experienced lobbyists, we learned to reaffirm that the leaders of the work were the individual FARE members. We gave time and space for conversation, amplified voices, relayed messages, and tapped into our networks at the direction of the coalition, not as directors ourselves. We learned that our best contributions to the movement were the legal research and writing we did for the Tenants Union as well as the legal information we shared with FARE members.

***

Seattle will have the most progressive housing protections in the country for people with criminal records. Around the country we are hearing from advocates who hope to spark similar change in their communities. Like all of them, we are learning as we go. Our work with the FARE coalition will continue, and we hope that on some level many of you can continue it with us.

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