Last week was celebrated for President Obama’s encouragement for America to reduce employment discrimination against people with past records, and his own executive action to ban the box on federal job applications. The heart of that story is how directly impacted people, particularly people from the Formerly Incarcerated, Convicted People, and Families Movement (FICPFM) have been organizing and advocating on this issue from the local, state, and federal levels. This is empowerment, as FICPFM has veteran organizers, strategists, and lawyers within the coalition. Although this Ban the Box symbol from the White House has a long way to go for genuine structural progress, it was the next step for a conservative political class.

Something else happened in Washington, D.C. that may ultimately hold greater civil rights implications than this Ban the Box announcement: the Department of Housing and Urban Development (HUD) issued a notice that will reduce discrimination against families who have contact with the criminal justice system. This, too, is an issue FICPFM has advocated since their 2013 report, “Communities, Evictions, and Criminal Convictions.”

An end to mandatory “One-Strike” policies

HUD pointed out what is already obvious in the policy, yet one wouldn’t know it by the practice: the One-Strike Policy, evicting people based on a single brush with the law, is not mandatory. When the federal government enacted a policy at the height of the drug war, the 1988 Anti Drug Abuse Act, it allowed public housing authorities to do just that. When evicted elderly tenants took this issue to court, the Supreme Court ultimately decided that the rule was constitutional. That case, HUD v. Rucker, is often mischaracterized as the court creating the eviction law. In reality, if the policy changes, the Court would likely also support any such new policy.

Because something is permitted, doesn’t mean it must be done. For years, however, public housing authorities have used and abused that permission to evict people from their homes and from the voucher program, and kept them from returning. Today, however, that exclusion model has passed its peak, as 80 million Americans are subject to the one systematic legal discrimination: the mark of a criminal record. Furthermore, there is no indication that supporting instability and homelessness has had any effect in reducing drug abuse.

Arrests and the restored ‘presumption of innocence’

The other major announcement by HUD last week is the announcement that an arrest, on its own, does not count as criminal activity worthy of eviction or denial of admission. Arrest records are unreliable, and people maintain a legal presumption of innocence. However, the fact that public housing authorities (all of whom have attorneys on staff) have been utilizing arrest records to exclude people is yet another example of how thorough the discrimination has become. It starts in grade school and chases one to the grave.

Here in Louisiana, we have two million people in our criminal records database, in a state of only 4.6 million people. Although some of these people have passed on, the vast majority of that two million have been convicted over the past four decades. With the Drug War fueling the militarization and deployment of police, they have descended on poor people and communities of Color. Although the highest concentration of drug use is on college campuses where students are often given a pass (and definitely not subjected to Stop and Frisk profiling), the police concentrate otherwise- in places where people are often not given a pass, who have few if any connections to the power structure, who cannot afford lawyers, where people of Color will statistically receive longer sentences than white people, where they will have less support for parole reviews, where they will have fewer options once released, and where they will face a lifetime of judgment and re-judgment until we get rid of this burgeoning world of Haves and Have-Nots.

Criminal records have proven to not only be a racial proxy for those who would like to discriminate due to race, but this highly effective form of discrimination is widely acknowledged as a based on a system that disproportionately impacts people of Color. When the Ninth Circuit confronted voting disenfranchisement based on criminal records, the facts were clear- the only argument was over intent. They ruled that because the racially skewed system doesn’t intend to be racist, its racist outcomes are not unconstitutional. In 2012, the Equal Employment Opportunity Commission went a step further (consistent with civil rights law) and issued guidelines reinforcing that it’s the impact that is important, not the intent, thus employers should not have blanket policies excluding people based on their criminal records.

Affirmatively Furthering Fair Housing

This week HUD has moved forward in honing and advancing their imperative to Affirmatively Further Fair Housing (AFFH). This means they need to be on the offense, to be aggressive, in order to be affirmative. We live in a nation where practically every landlord conducts a criminal background check, and often passes this cost ($10-$50) on to the applicant. That highly publicized background check is a chilling effect on renters. Some will flat deny anyone with any record. Perhaps home loan lenders have similar discriminatory maneuvers that need investigation.

It is encouraging to see HUD and others nibbling around the edges of a central dilemma among Americans who need affordable, and fair, housing to survive in our economy where (for example) banks can repossess homes, watch them become blighted, then write it off on their taxes while a family searches for shelter. It is imperative that HUD be jumpstarted to become a civil rights champion rather than a target for criticism, and ideally the follow-up to “Communities, Evictions, and Criminal Convictions,” will outline significant structural improvements.

Unless we reunite as one nation, we will divide and dissolve under two economies and two subdivisions. Family members of the second-class citizens will be forced to choose which class to be in, and flags flying over businesses will need to signify which nation they support. America can be better than that, however, and will be when we develop affordable housing with the same vigorous building boom, with the same easy occupancy, as we did for prison cells.