Freedom of Choice for Low-Income Renters Still Elusive as States and Cities Scramble to Confront Housing Voucher Discrimination

The Civil Rights Act of 1968, also known as the Fair Housing Act (FHA), will be 55 years old in April 2023. While enforcement of the FHA and many state and local fair housing laws have made inroads on housing discrimination over the last five decades, those laws’ promise of freedom to choose our homes and neighborhoods—regardless of our race, religion, national origin, disability, gender, family status, or other protected classes—has not been fulfilled. Segregation continues in cities, and, according to the National Fair Housing Alliance’s 2021 Fair Housing Trends Report, 28,712 housing discrimination complaints were filed in 2020, while studies based on undercover testing show that over 4 million incidents of discrimination likely occurred.

At the same time, the cousin crises of homelessness and unaffordable housing have been exacerbated by the COVID-19 pandemic and its economic aftermath. Home prices shot up, putting home ownership out of reach for many. For tenants, as pandemic-related eviction moratoriums lapse and inflation rises, evictions and rents across the country are skyrocketing. In the middle of the country, for example, Kansas City, Missouri, rents have increased 8.5 percent for the 12 months ending October 2022, and, nationally, rents have risen 20 percent since early 2020. (Conor Dougherty, “The Rent Revolution Is Coming,” The New York Times, Oct. 15, 2022.) Meanwhile, homelessness has become an acute national problem, with shelters nationwide reporting a surge in requests for help. (Abha Bhattarai and Rachel Siegel, “Inflation Is Making Homelessness Worse,” The Washington Post, July 3, 2022.)

It is little wonder then that many cities, counties, and states have turned increasingly to federal rental assistance such as the Housing Choice Voucher (HCV) program along with new laws protecting voucher holders from discrimination. Cities and counties use vouchers and the protections as fulcrums to leverage their scarce resources to curb voucher discrimination and improve the housing choices for their low-income residents. Sixteen states and over 100 cities have passed fair housing laws targeting “source of income” discrimination, all while waiting for Congress to amend the FHA to add this protected class.

Vouchers Can Provide Choice and Immediate Relief to Home Seekers and Existing Tenants

The HCV program, also known as Section 8 (added in 1974 to Section 8 of the Housing Act of 1937), is the most common form of housing subsidy dispensed from federal funds to help communities fight homelessness and deconcentrate poverty. By paying all remaining rent beyond 30 to 40 percent of the tenant’s monthly income, these vouchers cap what tenants pay, at a rate they can actually afford. Its innovation was embraced by both Democrats and Republicans as an alternative to public housing projects. Nearly 50 years later, the program now helps over 2 million low-income residents find safe and affordable housing.

Vouchers can be used anywhere. As implied by the HCV program’s name, choice is the aim, to provide low-income families with greater choice in where they live and what they live in. They also can choose homes closer to jobs, education, and vital services. And they can even choose to stay in their existing homes.

The plights of four voucher holders in Santa Monica, California, show the voucher’s potential:

• The Bradleys, a Black family of six, had previously used a voucher to choose and afford a two-bedroom Santa Monica apartment. But by 2020, the family had outgrown it, especially after the pandemic kept one of the parents home for teleworking. The Santa Monica Housing Authority issued a three-bedroom voucher, enabling them to apply for larger apartments in the city where the children attended school and where one of the parents worked. Theoretically, the Bradleys were going to be able to exercise their choice again.
• Brenda Diaz is a 71-year-old Latina widow, who had lived in her apartment for 21 years. She had been paying over 90 percent of her monthly income—limited to a Social Security check—for her rent and was borrowing money from family members to eat and for medicine. Her new voucher would now limit what rent she paid out-of-pocket to 30 percent of her income. It would allow her to pay her bills and keep her home.
• Lee Greene had been an excellent tenant at his apartment for 18 years. However, due to his disability from a traumatic brain stem injury and with the fixed income of his disability check, he was extremely rent-burdened, paying most of his income for rent. Like Brenda, he was being forced to make tough decisions regarding other bills. It was not sustainable; he was on the brink of homelessness when he finally came off the voucher waitlist.
• Sarah Bowers is a 69-year-old tenant who has lived in her apartment for 30 years. She is a liver transplant recipient and cancer survivor relying on Social Security and disability checks. She had only $198 left at the end of the month for food and other critical items. Her new voucher, should her landlord accept it, would limit her share of the rent to 30 percent of her income.

Thanks to the HCV program, the Bradleys, Brenda, Lee, and Sarah were given hope and theoretical choice. Without the voucher and its prompt utilization, they had few options, and, for everyone but the Bradleys, homelessness was one of them. They all immediately informed either their prospective or current landlords about the voucher.

Discrimination Against Voucher Holders Defeats the Aim of Choice Intrinsic to the Program and the Fair Housing Laws

Ever since the HCV voucher was created, landlords and property management companies have routinely rejected voucher holders or found ways to discourage their applications. In the cases of the four voucher holders described above, all of their landlords or prospective landlords said words to the effect, “No thanks; we do not want to participate in the Section 8 program.” Some of the landlords even put such words in writing. In the Bradleys’ case, the property management company wouldn’t even let them apply.

Refusing to accept tenants who are part of the Section 8 program is a prevalent policy and type of housing discrimination that communities across the country have struggled with for years.

Landlords’ potential reasons for these policies range from the misinformed to the ugly: (1) believing the program would force them to lower the rent (it doesn’t); (2) fearing the administrative burden of federal red tape, even though “red tape” is limited to a home inspection and a basic contract with the local housing authority, and such burden claims have been dismissed by courts (See County and City of San Francisco v. Post (2018) 22 Cal. App. 5th 121); and (3) subterfuge to hide unlawful discrimination based on race, disability, or other protected classes who have disproportionately high representation among voucher holders.

As the policies against voucher holders persist, the impact on low-income residents becomes severe: They are spending time and money applying for apartments, only to get turned away, and are then forced to give up the voucher and settle for substandard housing in high-poverty neighborhoods. Without fair housing protections, the problem worsens. In California, for example, landlords in Los Angeles had obtained a published appellate court ruling that the state’s source of income law did not protect voucher holders. Without that protection, the Los Angeles Times reported, half of the voucher holders in Los Angeles in late 2018 had spent six months looking for an apartment that would accept their voucher. Because vouchers expire after six months, it turned into “the highest failure rate in city history,” according to the Times Editorial Board. (Editorial Board, “End Section 8 Housing Discrimination,” The Los Angeles Times, 19 April 2019.)