Discrimination in awarding Section 8 housing
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Racial and economic segregation in the housing market have been a major problem throughout in the history of the U.S.. In 1968, Congress enacted the Fair Housing Act (FHA) as Title VIII of the Civil Rights Act of 1968 to combat racial segregation. In 1974, to further combat the concentration of poverty and racial segregation in housing, the government developed the Section 8 Housing Voucher Program (now known as the Housing Choice Voucher Program), which supplies vouchers to low-income tenants to assist with rental payments.
Yet, despite receiving vouchers to help with rental payments, participants in the program still experience substantial difficulties obtaining housing. There is noticeable discrimination that takes place within the Section 8 Housing Voucher Program.
Under the Section 8 Housing Voucher Program, participants can use the voucher to pay a portion of their rent. However, participation in the Section 8 Housing Voucher Program is voluntary for landlords. Once a landlord has chosen to participate in the program, a landlord can withdraw for many reasons. Many of the participants in this program are minorities or persons with disabilities and oftentimes the landlords will withdraw from the program for discriminatory reasons. As neighborhoods have gentrified, voucher holders are finding that property owners who might have taken their vouchers in the past are now turning them away.
Background on the Section 8 Housing Voucher Program
There are more than two million households in the United States that participate in the Section 8 Housing Choice Voucher Program (the Section 8 voucher program) to afford privately owned rental housing. The Section 8 Program provides rent subsidies to low income families who then seek out participating landlords who will rent out property to them. Thus, the Section 8 Program is designed to reduce the barriers to obtain affordable housing for people with low incomes. There are many landlords across the country participating in this program to offer low-income families an opportunity to choose housing outside of public housing.
Under this program, the federal government provides rent subsidies to eligible low-income families who rent from participating landlords. Local Public Housing Authorities (PHAs) manage and administer the Section 8 voucher program in conjunction with the Department of Housing and Urban Development (HUD). The PHAs issue vouchers to qualifying families who then independently find suitable rental housing from private owners and landlords who voluntarily take part in the program. In order to participate in the program, landlords must meet basic housing quality standards, rent at rates within fair market guidelines set by HUD and the local PHA.
When a Section 8 voucher participant rents from a participating landlord, the local PHA “pays the difference between the household’s contribution (set at 30 percent of income) and the total monthly rent.”  The Section 8 voucher program does not set a maximum rent, but participants must pay the difference between the calculated subsidy and actual rent. Landlords receive the subsidy directly from the PHAs.
Discrimination in the Section 8 Voucher Program
One of the major problems with the Section 8 Housing Voucher Program is that participants in the program often run into problems finding apartments to rent. In 2001, HUD conducted a study to determine the success rates of voucher holders in finding and securing apartments to rent. In the first study, in the early 1980s, 50 percent of the Section 8 Housing Voucher participants were able to find housing. This number increased to 68 percent from 1985 to 1987. There was a rise to 81 percent by 1993. However, the figures dropped to 69% success in 2000. The low success rates can be attributed to landlords declining to accept the vouchers either because of discrimination against the participants in the program or because of the burdens the program places on housing providers.
A problem with the Section 8 Housing Voucher Program has to do with the fact that participation in the program is voluntary. There are many participants in the program who cannot find a landlord who will accept the vouchers. For example, there have been instances where a landlord is participating in the Section 8 Housing Voucher Program and then suddenly decides to withdraw from participation in the program. This is a type of source-of-income discrimination that occurs where landlords refuse to rent to individual because of their source of income is a public assistance. Income from public assistance can include social security benefits, disability benefits, Temporary Assistance to Needy Families (TANF), or Section 8 Housing Vouchers. Some landlords have been particularly resistant to accepting tenants who use the vouchers and have subsequently adopted no-voucher polices that are similar to past discriminatory practices like the no-children policies.
Section 8 Housing Voucher Discrimination creates barriers to people finding affordable housing opportunities. The income of families who receive vouchers is at or below 50% of the area median income and this means these families face financial obstacles to obtaining needed goods and services. These families rely on vouchers to overcome their financial obstacles and to find affordable housing. Voucher discrimination reestablishes some of the barriers to finding affordable housing. It could be negatively hindering the federal government’s goal to provide a suitable home for every American family.
The Effects of Discrimination on the Section 8 Housing Voucher Program
Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act (FHA), bars discrimination against any person in the terms, conditions, or privileges of sale or rental of a dwelling because of race. By passing the FHA, Congress intended to promote racial integration as well as nondiscrimination as national goals. However, despite the passage of the FHA, pervasive racial discrimination and segregation exist within the public housing system, particularly in the Section 8 Program. One of the major problems with the Section 8 Program is that since participation in it is voluntary, many recipients are unable to find landlords to accept the vouchers.
The discrimination against voucher holders is a general problem. The widespread discrimination reduces the utility of the voucher program, and frustrates the purported goal of the legislation, which is to end housing segregated by race and income. In addition, while the refusal to accept the vouchers appears racially neutral on its face, many housing advocates believe that the acceptability and legality of Section 8 discrimination enables landlords to use it as a proxy for other legally prohibited kinds of discrimination, such as that based on race, ethnicity, national origin, gender, family status, or disability. For example, studies show that the discrimination against Section 8 voucher holders increases if the recipient is African American or Latino.
Thus, the Section 8 Program has not been entirely successful at ending housing segregation. Many recipients end up using their subsidies to pay for their current low-income housing units or move within their own segregated neighborhoods. Because of discrimination against voucher holders, many subsidy recipients can only find housing in neighborhoods where they already are in the racial majority.
Disparate Impact Claims to Address Section 8 Housing Voucher Discrimination
One way in which discriminated parties have dealt with discrimination is by bringing disparate impact claims. In disparate impact claims, a prima facie case of discrimination is established by showing that the challenged practice of the defendant actually or predictably results in racial discrimination. This analysis focuses on facially neutral policies that may have a discriminatory effect. Federal courts will allow claims to be made under the FHA on a disparate impact theory by analogizing the FHA to Title VII because they both share a goal of reducing discrimination.
However, courts are dividing on how they rule when it comes to allowing disparate impact claims under the FHA for voucher discrimination. A few federal courts have allowed plaintiffs who were denied housing because of their vouchers to assert these claims. Other courts have limited or prohibited them. Thus, the courts are not uniform when it comes to addressing disparate impact claims for voucher discrimination. Congress has recognized that refusing to rent to families with children violated the FHA and it should extend that protection to people who use vouchers. Without more legal protections, voucher discrimination can continue and the Section 8 Housing Voucher Program can be in danger of not meeting its intended goal of increasing the quantity of options and quality of housing for low-income individuals and families.
- Pub. L. No. 90-284, tit. VIII, 82 Stat. 73, 81-89 (codified as amended at 42 U.S.C. §§ 3601-3631 (2006)).
- Housing and Community Development Act of 1974, Pub. L. No. 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. § 5301 (2006)).
- Rebecca Rotem, "Using Disparate Impact Analysis in Fair Housing Act Claims: Landlord Withdrawal from the Section 8 Voucher Program," 78 Fordham L. Rev. 1971, 1972, (2010).
- See Graoch Assocs. #33 v. Louisville/Jefferson County Metro Human Relations Comm'n, 508 F.3d 366, 376 (6th Cir. 2007).
- Handicap and race are two protected classes under the Fair Housing Act. 42 U.S.C. § 3604.
- Manny Fernandez, Despite New Law, Subsidized Tenants Find Doors Closed, N.Y. Times, Sept. 20, 2008, at B1.
- Bruce Katz & Margery Austin Turner, Rethinking U.S. Rental Housing Policy: A New Blueprint for Federal, State, and Local Action, in Revisiting Rental Housing: Policies, Programs, and Priorities 319, 319 (Nicolas P. Retsinas & Eric S. Belsky eds., 2008).
- Evan Anderson, "Vouching for Landlords: Withdrawing from the Section 8 Housing Choice Voucher Program and Resulting Disparate Impact Claims," 78 U. Cin. L. Rev. 371, 375 (2009).
- Sean Zielenbach, Moving Beyond the Rhetoric: Section 8 Housing Choice Voucher Program and Lower-Income Urban Neighborhoods, 16 J. Affordable Housing & Community Dev. L. 9, 10 (2007).
- Meryl Finkel & Larry Buron, U.S. Dep't of Hous. and Urban Dev., Study on Section 8 Voucher Success Rates, Quantitative Study of Success Rates in Metropolitan Areas 2-2 (2001).
- Tamica Daniel, Bringing Real Choice to the Housing Choice Voucher Program: Addressing Voucher Discrimination Under the Federal Housing Act, 98 Geo. L.J. 769, 776 (2010).
- 42 U.S.C § 1437(a) (2006).
- 42 U.S.C. § 3604(b) (2006).
- John Goering, Introduction and Overview: Housing, Justice, and the Government, in Fragile Rights within Cities: Government, Housing, and Fairness, 1, 9 (John Goering, ed., 2007). See also Michael H. Schill, Implementing the Federal Fair Housing Act: The Adjudication of Complaints, in Fragile Rights within Cities: Government, Housing, and Fairness, supra, at 143-44.
- Rebecca Rotem, "Using Disparate Impact Analysis in Fair Housing Act Claims: Landlord Withdrawal from the Section 8 Voucher Program," 78 Fordham L. Rev. 1971, 1980, (2010).
- Rebecca Rotem, "Using Disparate Impact Analysis in Fair Housing Act Claims: Landlord Withdrawal from the Section 8 Voucher Program," 78 Fordham L. Rev. 1971, 1982, (2010).
- Tamica Daniel, Bringing Real Choice to the Housing Choice Voucher Program: Addressing Voucher Discrimination Under the Federal Housing Act, 98 Geo. L.J. 769, 793 (2010).