Reprinted with permission from Human Rights, Volume 48, Number 2, 2023, at 16–17, 19. ©2023 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Civil Rights Act of 1968, also known as the Fair Housing Act (FHA), turned 55 in April of this year. 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.)
Local and State Laws Prohibiting Voucher Discrimination Eventually Saves and Makes Tenancies
Fortunately for the Bradleys, Brenda, Lee, Sarah, and at least 30 other tenants who the Santa Monica City Attorney’s Office has helped, they were all living in a city that had already long prohibited such discrimination. In 2015, Santa Monica added “source of income” as a protected class to the city’s fair housing ordinance and then went a pioneering step further to define “source of income” as “any lawful source of income or rental assistance from any federal, State, local, or non-profit-administered benefit or subsidy program including, but not limited to, the Section 8 voucher program.”
Since that time, the City Attorney’s Office (CAO), along with help from the Legal Aid Foundation of Los Angeles, has been able to persuade landlords to turn their no into a yes and accept the vouchers, usually without resorting to litigation. Brenda, Lee, the Bradleys, and 30 other tenants now use their vouchers each month. Sarah’s landlords eventually accepted her voucher too, but only after the CAO sued them for voucher discrimination and then obtained a judgment and injunction in August 2022. (Sunidhi Sridhar, “Santa Monica Successfully Sues Landlords Over Voucher Law,” Los Angeles Daily Journal, Aug. 11, 2022.) While this case and others were litigated by the CAO, Santa Monica’s law follows nearly all other civil rights laws in shifting responsibility for attorney’s fees and costs to the losing party. This makes it possible for private attorneys and firms to take voucher discrimination cases pro bono and later pursue fees.
Los Angeles and California followed Santa Monica in 2019 and 2020, respectively, making similar amendments to their fair housing laws. However, Santa Monica’s head start on enforcement and its success help to illustrate recent research by The Urban Institute, showing that while such enforcement improves choices for voucher holders in low-poverty neighborhoods, it can take an optimum blend of years, specificity of legal protections, and a committed enforcement program before such laws make a positive impact. (Daniel Teles and Yipeng Su, “Source of Income Protections and Access to Low-Poverty Neighborhoods,” The Urban Institute, Oct. 2022.) Without the head start and committed enforcement, Los Angeles County still struggles with voucher discrimination, as half of the rental properties in Los Angeles surveyed in 2022 “showed signs of unlawful discrimination against voucher holders.” (Andrew Khouri, “Renters with Vouchers Struggle to Find Housing,” The Los Angeles Times, Nov. 19, 2022.)
For communities in the United States with that head start and strong enforcement, vouchers and other types of rental assistance bring win-win-win opportunities: Tenants get to choose safe, decent, affordable housing; the landlord gets a stable source of rent; and the community deconcentrates poverty, improves diversity, and frees up housing resources for the next person in need.
Each year, more cities and states add source of income protections to their fair housing laws to aid efforts on housing and civil rights, with Albuquerque, New Mexico, being the latest to stand up when the Albuquerque City Council voted to ban Section 8 discrimination in June 2022. And there are potentially more laws in the pipeline. In Lawrence, Kansas, for example, the Human Relations Commission and the Affordable Housing Advisory Board both recently voted to recommend that Lawrence add such protections to its municipal code after a study showed that vouchers were not accepted at 80 percent of the available rental units, and while noting that “refusing to accept vouchers . . . keeps our city segregated and unhoused.” (Mackenzie Clark, “Lawrence’s Human Relations Commission Pushes to Ban Housing Discrimination Based On Source of Income,” The Lawrence Times, Oct. 27, 2022.)
Unfortunately, 34 states and the vast majority of cities haven’t even begun to provide these protections. And most confounding, the federal government itself, from which this funding originates, does not protect its own voucher holders.
Conclusion: Voucher Holders Still Need Federal Protection
The slow and spotty rollout of local and state protections cannot contain the wildfires of discrimination, homelessness, and unaffordability that only a federal effort can put out. In June 2022, U.S. Senator Tim Kaine (D-VA) and Representative Scott Peters (D-CA) reintroduced The Fair Housing Improvement Act of 2022 (S. 4485; H.R. 8213), which would add “source of income” and “veteran status” as protected classes to the nation’s fair housing laws. Like the many voucher holders denied a chance to apply, the fair housing bill has not been afforded a vote in either house, and a vote seems even less likely in the House of Representatives now that the Republicans will assume control in 2023. But given the acuity of the housing crisis and that vouchers were once embraced by Republicans, perhaps voucher protection could still get a bipartisan vote. Congress, along with each state and city, should consider the now increased value of housing vouchers and make enforcement against voucher discrimination a priority. If they make those choices, it will improve the housing choices for all low-income families.
To protect their privacy, the names of the voucher holders in this article have been changed to pseudonyms.
Originally published in Human Rights, Volume 48, Number 2, 2023, at 16–17, 19; reprinted in GPSolo eReport, Volume 12, Number 12, July 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Civil Rights and Social Justice Section or Solo, Small Firm and General Practice Division.