“A series of fair housing and COVID-19 webinars hosted by LAFLA, the Western Center on Law & Poverty, and the San Diego Fair Housing Council.”
While COVID-19 is not the root cause of housing insecurity, the pandemic has pulled hundreds of thousands of Californians to the precipice of housing loss. This Article describes the existing eviction process that values individual property rights over the human right to housing, and describes proposed legislative solutions to prevent evictions en masse before considering urgent long-term changes. This moment calls for us to question the historical commodification of property, and to more towards a system that treats housing as a social good necessary for public health rather than a commodity to generate wealth for the privileged few.
Statement from California Rural Legal Assistance Foundation, Housing California, Public Advocates, Western Center
Last week, in a transparently racist political move, the Trump Administration announced the intention to bury the Affirmatively Furthering Fair Housing provisions of the federal Fair Housing Act. The Act is a core victory of the Civil Rights era that requires the federal government, as well as states, cities, and housing agencies receiving HUD funding, to actively dismantle segregation and housing inequality. It is an anti-racist law meant to help undo the role the federal government has played in housing segregation. Recognizing the looming threat to this longstanding federal civil rights law, California added a rigorous Affirmatively Furthering Fair Housing mandate to state law in 2018.
Housing inequality is a plague on California and the rest of the country, and it is a result of generations of intentional government and corporate policy and disinvestment. True housing justice in the United States can only be achieved when all levels of government and private sector actors devote as much energy and as many resources toward dismantling racist housing systems as they put into creating them.
Practically, the federal Affirmatively Furthering Fair Housing requirement means that all government entities receiving HUD funding must analyze patterns of racial segregation and unequal access to housing for people of color, immigrants, people with disabilities, and other protected groups and take proactive steps to dismantle inequality. President Trump’s new policy would remove accountability for officials and policymakers who make decisions that could further segregate our communities.
Civil rights leaders like Dr. Martin Luther King, John Lewis, C.T. Vivian, and thousands more dedicated their lives to promote the enactment of the Fair Housing Act to dismantle segregation. In 2015, the Obama administration implemented new Fair Housing regulations requiring even stronger action from local governments to promote racial justice through housing policies. Now, as a new generation fights for progress, the Trump Administration attempts to go backwards. This proposal would move the country even further away from the goals of equity that millions of Americans are demanding right now.
The urgent need for fair housing couldn’t be more clear. A person’s zip code can mean a difference of 20 years’ life expectancy – Black and Brown lives are literally cut short because of racist housing policies. Many schools are more segregated now than they were before Brown v. Board of Education, largely because of segregated housing patterns.
Neighborhoods that people of color call home continue to be denied a fair share of public investment, while corporate real estate speculators force long-time residents from their homes; and wealthy suburbs continue to claim a disproportionate amount of public dollars as they exclude people of color.
Fortunately for the people of California, advocates fought for and won a new Affirmatively Furthering Fair Housing requirement in 2018. Assembly Bill 686, authored by Miguel Santiago, adopts and expands federal Affirmatively Furthering Fair Housing regulations in state law-requiring all state agencies, cities, counties, and housing authorities in California to analyze housing inequality and undertake steps to undo it in all activities relating to housing and community development.
We are committed to tearing down our own state’s racist housing systems and we call on our leaders in Congress to use their Congressional Review Act responsibilities to reject Trump’s rule and direct HUD to get back to the work of tearing down barriers to equity nationwide. These disheartening federal actions also make it all the more urgent for officials at all levels of government in California to vigorously implement the state’s requirement to affirmatively further fair housing.
“But the so-called poor-door approach — having a separate entrance and limited access to facilities — might be violating federal fair housing laws, said Sasha Harnden, a housing policy advocate with the Western Center on Law & Poverty.
“When a given action may have a disproportionate impact on a protected class, such as people of a certain race, elderly tenants, families with children, that can incur fair housing liability, that can be a prohibited practice even if it’s not intentional discrimination,” he said.”
To receive MCLE credit for the 2020 Fair Housing For Our Future Laws & Litigation Conference, please do the following:
- Sign the MCLE attendance sheet in in the room where the session was presented
- Fill out an evaluation for each sessions you attended using the links below
- Provide your email address
MCLE certificates will be emailed to you within 10 business days.
- Updates Regarding Fair Lending
- Successful Housing Civil Rights Litigation and Legislation
- Section 504- History of What the Law Provides and Who the Law Protects
- The Mechanics and Enforcement Components of the Law
- Basic Coverage of Fair Housing Laws
- How a City Can Avoid A Large Systemic Lawsuit like the Ones in Los Angeles and Chicago
- Update on Revisions, New Regulations and Future Laws or Pending Policies
- Fair Housing from the Past to the Future- Trending Updates
- Unlawful Detainers and Fair Housing A Workshop for Attorneys -Advocates and others-Part I
- Research and Anecdotal Cases that Broaden the Lens of Housing Discrimination Damages
- Source of Income Discrimination and Comments on “Moving Toward Integration”
- Legal Ethical Considerations for Advocates and Attorneys
- Affirmatively Furthering Fair Housing
- Updates on Hate Crimes and Litigation Impacting Immigrants
- Unlawful Detainers and Fair Housing- A Workshop for Attorneys-Advocates and others Part II
- Fair Housing Updates on Sexual Harassment-Criminal Justice Reform- Disparate Impact
To read Western Center’s full comments, click here. An excerpt can be found below:
The Fair Housing Act was passed in the wake of Martin Luther King Junior’s assassination with the goal of moving closer to some of the ideals he gave his life to pursue – ending segregation and ensuring that all people could live in the community of their choice regardless of the color of their skin. This landmark civil rights law has been a critical tool in moving towards a more integrated nation where everyone can live in the community of their choice; but we have a long way to go before realizing its goals. HUD’s proposed rule profoundly undermines the Fair Housing Act (FHA). If finalized, the rule will make enforcement of the FHA’s protections impossible except in cases where the perpetrator of discriminatory conduct announces their ill intent. Corporate interests, including the insurance companies that this Rule appears intended to benefit, are too sophisticated to state their intent to discriminate.
Courts have recognized for the past half-century that the Fair Housing Act should be interpreted to reach conduct where a protected group is disproportionately harmed even through no intent to discriminate can be clearly shown. As the Supreme Court recognized in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, disparate impact liability is critical to address those issues at the “heartland” of the Fair Housing Act. While HUD professes to be implementing the Supreme Court’s decision with this proposal, it is in fact undermining and eviscerating the concept of disparate impact liability and the ICP decision. If this Rule is finalized, the Fair Housing Act will be much more difficult to enforce. With this proposal, HUD is abdicating its duty to further enforcement of the Fair Housing Act.
By Matt Warren, Western Center Housing Attorney
I’m a bit of a nester. I spend a lot of time thinking about my lived environment — how to make my office more productive, my home cozier. I obsess over the color of light bulbs, indoor plant selections, and furniture placement.
I’m also a housing attorney, so I think a lot about where and how people find and create a safe home for themselves, and how they establish their own sense of cozy.
The sites, conditions, and availability of housing in our country (and throughout the world) have long been limited based on socially-defined characteristics: gender, occupation, physical or mental ability, race, country of origin, family composition, religion. These characteristics and more have shaped the places and communities where people live in the United States. Perhaps more importantly, they also shape the limits of where people cannot live, and the condition of the housing they can access.
The federal Fair Housing Act (FHA), initially adopted on the heels of the assassination of Dr. Martin Luther King, Jr., is one of our most important tools to fight against the discrimination and limitations that have defined housing practices in our country’s history. The FHA is a foundational tool for advancing housing opportunities for entire communities. Housing advocates use the FHA to challenge the practices of landlords who unfairly refuse potential tenants, the lending practices of banks that prey on vulnerable groups, and zoning changes by local governments that limit equitable opportunity.
In August, the Department of Housing and Urban Development (HUD), the federal agency tasked with upholding and advancing the FHA, proposed a rule that would dramatically change the way that the FHA can be used. Courts and HUD have interpreted the FHA as including the “disparate impact” theory of housing discrimination for decades, but the new rule proposes to severely limit how and when victims of discrimination can sue under this theory.
Disparate impact is discrimination that occurs when a facially neutral practice has a discriminatory effect on a protected class. Examples of disparate impact include occupancy standards that exclude families by restricting the number of people allowed to live in a unit together, the practice of targeting historically segregated minority neighborhoods for predatory loans using zip codes or other proxies, landlord screening policies that exclude persons with criminal histories (this is particularly discriminatory since Blacks and Latinos are incarcerated at disproportionate rates), and cities limiting construction of multi-family housing that is affordable for working-class people — a majority of whom are people of color.
Proving discrimination using disparate impact has become essential in civil rights enforcement. As described by Justice Kennedy in Texas DHCA v. Inclusive Communities Project (2015), “It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent [discrimination] that might otherwise result from covert and illicit stereotyping.”
HUD’s proposed rule includes a lot of changes to existing law. First, instead of providing a clarifying interpretation of the law, the rule adds a five-element test for plaintiffs at the pleading stage. Right now, victims of discrimination can move forward with a claim if they’re able to show that a practice caused a discriminatory effect. The new five-part test would require them to essentially know the inner workings of the often complex entities in charge of their housing before they head to court, which will result in fewer cases. Second, the proposed rule attempts to erase part of the disparate impact theory entirely so practices that “perpetuate segregation” are no longer actionable.
Third, the proposed rule would make it easier for entities facing allegations of disparate impact discrimination to evade responsibility for their actions. Part of the proposed rule allows a business entity to evade responsibility for discriminatory impacts if they use an algorithm to deny someone a housing opportunity. Algorithms are routinely used for housing decisions, many of which reflect and maintain existing disparities in the housing market. Think of it this way: because of redlining and other historical disadvantages, people of color have been explicitly and systematically excluded from credit-building opportunities compared to white counterparts. Algorithms that base loan decisions on existing creditworthiness perpetuate disparities in access to loans, meaning historical disadvantages continue and deepen. HUD’s proposal would shield actors who rely on these algorithms from liability.
All of these changes are aimed at making it more difficult to allege discrimination, while limiting liability for landlords, banks, and insurance companies. It will make it more difficult for people to find and create homes by allowing housing-related businesses to unfairly limit where and how they can live.
The proposed rule impacts other areas of law as well. Victims of discrimination in employment and education have also utilized disparate impact theory to level the playing field. These areas of law borrow significantly from each other, with many advocates and courts pointing across subjects for the persuasive authority of similar discrimination cases. Even though HUD’s proposed rule specifically targets housing discrimination enforcement, it will have serious impacts on the interpretation of disparate impact in other civil rights fields.
The proposed rule is also hugely significant because it weakens our ability to combat racism. Racism and white supremacy are baked into our country’s identity, impacting our sub-conscious, our interpersonal interactions, our institutions, and our broader social systems. Racism has traditionally been understood as blatant and intentional discrimination against minorities—but now, sophisticated housing providers know not to overtly treat people differently, and discrimination often takes the form of “neutral” policies that end up harming people of color. It’s still profitable to discriminate against people of color and other protected minorities because those groups have less access to social benefits and wealth. By maintaining these kinds of race-neutral policies, businesses reinforce historical advantages of whites while perpetuating disadvantages of people of color.
The proposed rule change reflects this administration’s favoritism toward real-estate businesses, but it also reveals white fragility in action. The proposed rule attempts to impose the intent standard on all allegations of discrimination, shielding “color-blind” policies that preserve an inequitable status quo. It ignores that differential treatment of people of color continues to happen at subconscious levels, focusing the standard instead on differential treatment.
The disparate impact standard remains relevant because acts that perpetuate discrimination have continuing, real, and negative impacts even where there is no malicious intent. HUD’s proposed changes to the disparate impact rule facilitates systemic oppression via banal intentions.
The only positive thing to say about the proposed rule is that it is not yet in effect. HUD is in the process of soliciting comments, until October 18, 2019, to comply with the requirements for adopting administrative rules. You can have an impact on the proposed rule by submitting a comment to HUD explaining why it would have a harmful impact on you, your family, your friends, your neighbors, your tenants, your clients, or your community.
Our team at Western Center on Law & Poverty is partnering with the National Housing Law Project and the Shriver Center on Poverty Law on the Fight for Housing Justice Campaign. We’ve created a website that includes resources, as well as a comment portal that allows you to submit your comment to HUD. It is vital that HUD hear from as many people as possible.
Please help us fight against this attempt by the Trump administration to limit housing choice; expanding housing choice is essential for creating a more equitable country, and safe, secure housing is fundamental to our humanity. Let’s make sure everyone has a place to cozy up, fuss over lighting, and obsess over where the couch should go.
The Trump Administration has proposed a new rule interpreting an important civil rights theory in a way that would significantly weaken enforcement of federal anti-discrimination laws. The rule would make it more difficult to allege and prove discrimination by a housing provider.
For more than 50 years, the Fair Housing Act has served as a vital tool in expanding housing opportunity for protected groups. In that time, the shape of housing discrimination has shifted away from overt, differential treatment, as sophisticated housing providers no longer advertise their intent to exclude protected classes. Housing discrimination increasingly takes the form of “disparate impact,” where a facially-neutral policy or practice has an adverse impact on minorities. The ability to allege discrimination via disparate impact is incredibly important for enforcing fair housing laws.
The Administration’s proposed rule increases the standard for bringing a disparate impact suit to the point that it would become, in practice, close to impossible. It suggests that landlords, banks, insurance companies, and other powerful entities should not be responsible for the discriminatory housing practices they perpetuate, and ignores the fact that housing segregation in the United States remains ubiquitous, and access to housing unequal. The underlying patterns, practices, and problems that create segregated housing have not been solved, especially for people of color – the proposed rule disregards that reality.
The proposal includes multiple provisions that limit civil rights enforcement, including:
- Transforming the current, three-part, burden-shifting test into a five-part prima facie evidentiary test that would require a plaintiff to identify and demonstrate that a specific policy has a discriminatory outcome in order to move past pleading;
- Forcing plaintiffs to plead a “robust causal link” between the defendant’s housing practice and the resulting injury;
- Limiting liability for housing providers when they rely on automated decision-making systems and algorithms that perpetuate discrimination in the housing market;
- Providing insurance companies some safe harbor from liability where they can assert compliance with state law; and
- Changing the strong vicarious liability standard in fair housing law to a piecemeal, state-by-state assessment of agency-principal liability.
These changes, largely inconsistent with existing case law, inhibit civil rights enforcement by making it more difficult for victims of discrimination to bring their case to court.
The proposal is in line with the Trump administration’s attitude toward American race relations – which is either to ignore it or exacerbate it. The proposed rule assumes racism and discrimination are things of the past, and that all that we need to do now is passively denounce overt racism. That fantasy ignores the reality of discrimination in the contemporary United States, particularly within the housing market. It also ignores a growing body of implicit bias research that says preferences against people of color are deeply ingrained in our society, and that deliberate intervention is necessary to prevent such bias from determining social outcomes.
California and the rest of the nation is in the midst of a housing crisis. Additionally, the majority of people in California are part of a protected minority group, but the people with power, money, and influence are still disproportionately white. Without active protections, that dynamic is a recipe for discrimination and stagnation. This proposed rule would cripple access to housing at a time when California and the country can’t afford to lose any ground in the quest to keep people housed.
The proposed rule has not yet been adopted. We and our partners in California and beyond will fight vigorously against the rule as it makes its way through the administrative process. Stay tuned for updates on how you can comment and advocate for the preservation of this essential civil rights enforcement tool.