More About Discriminating Against College Students

A friend spoke to me today about my earlier post regarding discrimination against college students. She said she disagreed with me, and thought it was in fact illegal to discriminate against college students.  Her rationale was based on positions HUD is taking when bringing complaints against landlords, and arguments made by HUD in those complaints.  I could not find a single reported appellate decision, nor any reported HUD decisions, saying it is illegal to discriminate against college students in housing.  Maybe there are some, but I haven’t been able to find them after several hours of legal research.

That almost doesn’t matter. It is important to know that HUD is pushing the envelope on this issue, and that lawyers disagree on this issue.  What YOUR lawyer thinks is important, not what you read on somebody’s blog.  My blog post can form the basis of a meaningful discussion with your attorney, but it’s not legal advice.

Apparently, HUD thinks that discriminating against college students has a disparate impact on a protected class–that class being “familial status.”

The Fair Housing Amendments Act of 1988 made it illegal to discriminate on the basis of familial status.

Section 802 of the Fair Housing Act defines “familial status” as follows:

“Familial status means one or more individuals (who have not attained the age of 18 years) being domiciled with (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with written permission of such parent or other person.”

In other words, you can’t discriminate against a tenant on the basis of the household including a kid under 18, as long as the household includes the kid’s parent, a person having legal custody, or the designee of the parent or person with custody.

The “disparate impact” concept was kind of dreamed up by the courts. It’s not in the actual statute. The courts have said, “If the statute says it’s illegal to intentionally discriminate against these people, then we think it should also be illegal to have policies that seem to be neutral on their face, but which have the bottom line effect of making life more difficult for one of the groups that it is illegal to intentionally discriminate against.”

When you put all of that together, I think HUD is saying, “If you discriminate against college students, then you are also unintentionally discriminating against families that have college students under the age of 18, and we think that is illegal.”

I see that.  I really do. I think it’s a silly argument and would lose in a court, but who wants to reach that point and be the test case?

My solution–if you want to exclude college students from your housing because of all the associated problems, or if you want to exclude undergraduate students from your housing, perhaps you could say, “We do not rent to undergraduate students unless the parent, person with legal custody, or designee of such person is also domiciled in the premises as their principal residence.”

Will that work? I don’t know.  It’s just my idea, given to you because of something brought to my attention by a friend.  You should ask your attorney about this issue, and perhaps your insurance company. They will be the ones you turn to if a complaint is brought against you. It would be good to know their opinion in advance.

Finally, PLEASE share your thoughts with me, especially if you disagree. We all learn from disagreements and the opinions of others.  If it turns out I’m wrong about something, I want to know that as soon as possible, so I can learn, and so I can set the record straight for you.

If you promise not to tell my husband, I’ll let you in on something–I’m not always right! He suspects I’m not always right, but I’d never admit it to him. Let’s keep this our little secret, okay?