Fighting Section 8 discrimination: The fair housing act's new frontier

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 1, 1996, Pages 155-186

  Beck, Paula ^a,b,c  

^a Honorable Paul A Magnuson   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c SWARTHMORE COLLEGE   (United States)

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EID: 9444233324     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (190)

1. Moving to Opportunity for Fair Housing, Pub. L. 103-120, § 3, 107 Stat. 1148 (1993) (codified at 12 U.S.C. §§ 1701z-11, 1721, 1735f-9; 42 U.S.C. §§ 1437f, 1490o, 9816, 11301, 12724). MTO, which is modeled after Chicago's successful Gautreaux Program, see infra note 20, is intended to assist a small number of very low-income families move from public housing or project-based Section 8 housing located in high-poverty areas to private housing in low-poverty areas. A demonstration group of MTO participants will be provided with housing allowances and extensive support and counseling services and will be compared to a control group of traditional Section 8 recipients. Boston is an MTO city, along with Baltimore, Chicago, Los Angeles, and New York City. The future of the MTO program is uncertain, as Congress has proposed to cut its funding or even repeal the program. See S. Res. 2160, 104th Cong., 1st Sess., 141 CONG. REC. S13,842-03, S13,855 (1995).
2. Interview with Sheri Williams, Manager, Moving to Opportunity Demonstration Program, Metropolitan Boston Housing Partnership, in Boston, Mass. (Apr. 18, 1995).
3. 43 U.S.C. §§ 3601-3619, 3631 (1988).
4. Telephone Interview with Philip Tegeler, Staff Attorney, Connecticut Civil Liberties Union (Apr. 25, 1995); see also Elizabeth A. Mulroy, The Search for Affordable Housing, in WOMEN AS SINGLE PARENTS: CONFRONTING INSTITUTIONAL BARRIERS IN THE COURTS, THE WORKPLACE, AND THE HOUSING MARKET 123, 134 (Elizabeth A. Mulroy ed., 1988).
5. See 42 U.S.C. § 1437f(a) (stating that Section 8's purpose is to "aid[ ] low-income families in obtaining a decent place to live and . . . promoting economically mixed housing") Somerville is not the only city experiencing increasing concentrations of poor people within its boundaries. In Chicago's south suburbs, local officials and long-time residents complain that the Cook County Housing Authority has "dumped or steered the poor, predominantly black subsidy holders to their area," creating a so-called "Section 8 corridor." Bill Clements, Subsidized Housing, Destabilized Suburbs: Officials Confront the Shortcomings of Section 8, CENT. PA. BUS. J., Sept. 1992, at 18. Almost 90% of Cook County subsidy holders who received subsidies in the 1980s settled in or near this corridor. Id. Similarly, residents in eastern Baltimore County fear that their communities are about to become home to a large Section 8 population. The MTO program is expected to move 285 poor families from inner city Baltimore to more economically mixed neighborhoods. Larry Carson & Pat Gilbert, Plan to Relocate Families from Inner City Fuels Fears, BALT. SUN, July 31, 1994 at 1B. Although MTO was designed to disperse its Section 8 recipients throughout the metropolitan area, the white, working-class residents of some of these suburbs believe that the program is the first step in a plan to empty the contents of Baltimore's public housing projects into their communities en masse. Id. The residents misguided outcry over MTO will only make the task of finding housing more difficult for the more than 3000 Baltimore County families currently benefiting from Section 8 funding.
6. See 42 U.S.C. § 1437f(a) (stating that Section 8's purpose is to "aid[ ] low-income families in obtaining a decent place to live and . . . promoting economically mixed housing") Somerville is not the only city experiencing increasing concentrations of poor people within its boundaries. In Chicago's south suburbs, local officials and long-time residents complain that the Cook County Housing Authority has "dumped or steered the poor, predominantly black subsidy holders to their area," creating a so-called "Section 8 corridor." Bill Clements, Subsidized Housing, Destabilized Suburbs: Officials Confront the Shortcomings of Section 8, CENT. PA. BUS. J., Sept. 1992, at 18. Almost 90% of Cook County subsidy holders who received subsidies in the 1980s settled in or near this corridor. Id. Similarly, residents in eastern Baltimore County fear that their communities are about to become home to a large Section 8 population. The MTO program is expected to move 285 poor families from inner city Baltimore to more economically mixed neighborhoods. Larry Carson & Pat Gilbert, Plan to Relocate Families from Inner City Fuels Fears, BALT. SUN, July 31, 1994 at 1B. Although MTO was designed to disperse its Section 8 recipients throughout the metropolitan area, the white, working-class residents of some of these suburbs believe that the program is the first step in a plan to empty the contents of Baltimore's public housing projects into their communities en masse. Id. The residents misguided outcry over MTO will only make the task of finding housing more difficult for the more than 3000 Baltimore County families currently benefiting from Section 8 funding.
7. See 42 U.S.C. § 1437f(a) (1988); cf. Mulroy, supra note 4, at 126 (arguing that the reason for increasing recipient's mobility through the program was to promote economic and racial integration).
8. See WILLIAM J. WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 58 (1987). According to William Julius Wilson and Alexander Polikoff, the dense concentration of very poor inner-city residents produces negative effects on their income levels, educational achievement, and employment rates. See, e.g., id. at 46-62 (arguing that social isolation, rather than cultural traits, causes negative effects in those areas); James E. Rosenbaum & Susan J. Popkin, Employment and Earnings of Low-Income Blacks Who Move to Middle-Class Suburbs, in THE URBAN UNDERCLASS (Christopher Jencks & Paul E. Peterson eds., 1991); Alexander Polikoff, Housing Policy and Urban Poverty 2-8 (Apr. 1994) (paper prepared for the Center for Housing Policy, Washington, D.C.) (summarizing Wilson and others' arguments about the effects of socioeconomic and racial isolation).
9. See WILLIAM J. WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 58 (1987). According to William Julius Wilson and Alexander Polikoff, the dense concentration of very poor inner-city residents produces negative effects on their income levels, educational achievement, and employment rates. See, e.g., id. at 46-62 (arguing that social isolation, rather than cultural traits, causes negative effects in those areas); James E. Rosenbaum & Susan J. Popkin, Employment and Earnings of Low-Income Blacks Who Move to Middle-Class Suburbs, in THE URBAN UNDERCLASS (Christopher Jencks & Paul E. Peterson eds., 1991); Alexander Polikoff, Housing Policy and Urban Poverty 2-8 (Apr. 1994) (paper prepared for the Center for Housing Policy, Washington, D.C.) (summarizing Wilson and others' arguments about the effects of socioeconomic and racial isolation).
10. See WILLIAM J. WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 58 (1987). According to William Julius Wilson and Alexander Polikoff, the dense concentration of very poor inner-city residents produces negative effects on their income levels, educational achievement, and employment rates. See, e.g., id. at 46-62 (arguing that social isolation, rather than cultural traits, causes negative effects in those areas); James E. Rosenbaum & Susan J. Popkin, Employment and Earnings of Low-Income Blacks Who Move to Middle-Class Suburbs, in THE URBAN UNDERCLASS (Christopher Jencks & Paul E. Peterson eds., 1991); Alexander Polikoff, Housing Policy and Urban Poverty 2-8 (Apr. 1994) (paper prepared for the Center for Housing Policy, Washington, D.C.) (summarizing Wilson and others' arguments about the effects of socioeconomic and racial isolation).
11. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
12. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
13. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
14. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
15. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
16. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993); HOUSING DESEGREGATION AND FEDERAL POLICY (John M. Goering ed., 1986); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1844 (1994) ("[S]egregation continues to play the same role it always has in American race relations: to isolate, disempower, and oppress."); David Blair-Loy, Comment, A Time to Pull Down, and a Time to Build Up: The Constitutionality of Rebuilding Illegally Segregated Public Housing, 88 Nw. L. REV. 1537, 1567-73 (1994) (arguing for desegregation strategies to provide viable housing choices to low-income tenants). But see John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. REV. 1487 (1993) (arguing that residential integration is merely a token gesture that ignores and devalues voluntary black community and that spatial equality is a more appropriate goal for public policy). For a summary of the debate within the civil rights community between "in place" and dispersion remedies to ease the plight of poor minorities in the inner cities, see Chester Hartman, A Universal Solution to the Minority Housing Problem, 71 N.C. L. REV. 1557, 1562-63 (1993).
17. See Mulroy, supra note 4, at 126.
18. See Blair-Loy, supra note 8, at 1577.
19. See HUD Helps Move to the Suburbs, ST. LOUIS POST-DISPATCH, Sept. 9, 1994, at 6C (stating that the Clinton Administration considers the Section 8 "programs to have substantial potential in addressing the dangerous level of racial and class segregation in the United States"); see also U.S. DEP'T OF HOUSING & URB. DEV., THE REINVENTION BLUEPRINT 5 (Dec. 19, 1994) [hereinafter REINVENTION BLUEPRINT].
20. See HUD Helps Move to the Suburbs, ST. LOUIS POST-DISPATCH, Sept. 9, 1994, at 6C (stating that the Clinton Administration considers the Section 8 "programs to have substantial potential in addressing the dangerous level of racial and class segregation in the United States"); see also U.S. DEP'T OF HOUSING & URB. DEV., THE REINVENTION BLUEPRINT 5 (Dec. 19, 1994) [hereinafter REINVENTION BLUEPRINT].
21. 42 U.S.C. § 1437f (1988 & Supp. 1993); 24 C.F.R. § 882.101-.124 (1995). The tenant-based, or demand-side, Section 8 subsidies are distinct from project-based, or supply-side, subsidies, which subsidize particular units instead of individual residents. 42 U.S.C. § 1437e (1988 & Supp. 1993); 24 C.F.R. § 882.701-.716 (1995).
22. 24 C.F.R. § 882.109 (1995).
23. 42 U.S.C. § 1437f(o) (1988 & Supp. V 1994). HUD has issued approximately the same number of vouchers as certificates. This Article treats Section 8 certificates and vouchers interchangeably unless otherwise indicated. The more generic term "subsidy" is used to refer to both. The differences may soon become moot, as the two programs are being consolidated. See 60 Fed. Reg. 34,660 (to be codified at 24 C.F.R. §§ 882, 887, 982, 983).
24. 42 U.S.C. § 1437f(o)(2) (1988).
25. 24 C.F.R. § 887.353(a) (1995).
26. 24 C.F.R. §§ 887.207(b)(2), 887.251 (1995).
27. See U.S. DEP'T OF HOUSING & URB. DEV., HUD REINVENTION: FROM BLUEPRINT TO ACTION 28 (Mar. 1995) [hereinafter BLUEPRINT TO ACTION] (citing a 1994 study that found that 80% of Section 8 subsidy holders were successful in finding housing); John C. Weicher, The Voucher/Production Debate, in BUILDING FOUNDATIONS: HOUSING AND FEDERAL POLICY 263, 275 (1990) (reporting that in 1987, 60% of certificate holders and 65% of voucher holders were able to use their subsidies, with even lower percentages for minorities and large families). A 1970s demonstration project, the Experimental Housing Allowance Program ("EHAP"), produced even more disappointing results. The program, which involved giving housing allowances to 30,000 households in order to test rental housing supply and demand effects, generated little geographic mobility for residents and enabled fewer than half of all eligible households to use their subsidies. See Hartman, supra note 8, at 1565. For a description and analysis of EHAP, see EXPERIMENTING WITH HOUSING ALLOWANCES: THE FINAL REPORT OF THE HOUSING ASSISTANCE SUPPLY EXPERIMENT 2-7 (Ira S. Lowry ed., 1983) [hereinafter EXPERIMENTING WITH HOUSING ALLOWANCES]. See generally HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT (Raymond J. Struyk & Marc Bendick, Jr. eds., 1981).
28. See U.S. DEP'T OF HOUSING & URB. DEV., HUD REINVENTION: FROM BLUEPRINT TO ACTION 28 (Mar. 1995) [hereinafter BLUEPRINT TO ACTION] (citing a 1994 study that found that 80% of Section 8 subsidy holders were successful in finding housing); John C. Weicher, The Voucher/Production Debate, in BUILDING FOUNDATIONS: HOUSING AND FEDERAL POLICY 263, 275 (1990) (reporting that in 1987, 60% of certificate holders and 65% of voucher holders were able to use their subsidies, with even lower percentages for minorities and large families). A 1970s demonstration project, the Experimental Housing Allowance Program ("EHAP"), produced even more disappointing results. The program, which involved giving housing allowances to 30,000 households in order to test rental housing supply and demand effects, generated little geographic mobility for residents and enabled fewer than half of all eligible households to use their subsidies. See Hartman, supra note 8, at 1565. For a description and analysis of EHAP, see EXPERIMENTING WITH HOUSING ALLOWANCES: THE FINAL REPORT OF THE HOUSING ASSISTANCE SUPPLY EXPERIMENT 2-7 (Ira S. Lowry ed., 1983) [hereinafter EXPERIMENTING WITH HOUSING ALLOWANCES]. See generally HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT (Raymond J. Struyk & Marc Bendick, Jr. eds., 1981).
29. See U.S. DEP'T OF HOUSING & URB. DEV., HUD REINVENTION: FROM BLUEPRINT TO ACTION 28 (Mar. 1995) [hereinafter BLUEPRINT TO ACTION] (citing a 1994 study that found that 80% of Section 8 subsidy holders were successful in finding housing); John C. Weicher, The Voucher/Production Debate, in BUILDING FOUNDATIONS: HOUSING AND FEDERAL POLICY 263, 275 (1990) (reporting that in 1987, 60% of certificate holders and 65% of voucher holders were able to use their subsidies, with even lower percentages for minorities and large families). A 1970s demonstration project, the Experimental Housing Allowance Program ("EHAP"), produced even more disappointing results. The program, which involved giving housing allowances to 30,000 households in order to test rental housing supply and demand effects, generated little geographic mobility for residents and enabled fewer than half of all eligible households to use their subsidies. See Hartman, supra note 8, at 1565. For a description and analysis of EHAP, see EXPERIMENTING WITH HOUSING ALLOWANCES: THE FINAL REPORT OF THE HOUSING ASSISTANCE SUPPLY EXPERIMENT 2-7 (Ira S. Lowry ed., 1983) [hereinafter EXPERIMENTING WITH HOUSING ALLOWANCES]. See generally HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT (Raymond J. Struyk & Marc Bendick, Jr. eds., 1981).
30. See U.S. DEP'T OF HOUSING & URB. DEV., HUD REINVENTION: FROM BLUEPRINT TO ACTION 28 (Mar. 1995) [hereinafter BLUEPRINT TO ACTION] (citing a 1994 study that found that 80% of Section 8 subsidy holders were successful in finding housing); John C. Weicher, The Voucher/Production Debate, in BUILDING FOUNDATIONS: HOUSING AND FEDERAL POLICY 263, 275 (1990) (reporting that in 1987, 60% of certificate holders and 65% of voucher holders were able to use their subsidies, with even lower percentages for minorities and large families). A 1970s demonstration project, the Experimental Housing Allowance Program ("EHAP"), produced even more disappointing results. The program, which involved giving housing allowances to 30,000 households in order to test rental housing supply and demand effects, generated little geographic mobility for residents and enabled fewer than half of all eligible households to use their subsidies. See Hartman, supra note 8, at 1565. For a description and analysis of EHAP, see EXPERIMENTING WITH HOUSING ALLOWANCES: THE FINAL REPORT OF THE HOUSING ASSISTANCE SUPPLY EXPERIMENT 2-7 (Ira S. Lowry ed., 1983) [hereinafter EXPERIMENTING WITH HOUSING ALLOWANCES]. See generally HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT (Raymond J. Struyk & Marc Bendick, Jr. eds., 1981).
31. Michael H. Schill, Distressed Public Housing: Where Do We Go from Here?, 60 U. CHI. L. REV. 497, 530-34 (1993): Laurie Abraham, Foes Kill Housing Plan Funds; Low-Income Renters Call Move Racist, CHI. TRIB., Dec. 15, 1994, at 33.
32. Michael H. Schill, Distressed Public Housing: Where Do We Go from Here?, 60 U. CHI. L. REV. 497, 530-34 (1993): Laurie Abraham, Foes Kill Housing Plan Funds; Low-Income Renters Call Move Racist, CHI. TRIB., Dec. 15, 1994, at 33.
33. The Gautreaux program grew out of a 1976 Supreme Court decision that determined that the Chicago Housing Authority had deliberately located its public housing in areas with high concentrations of poor African Americans. See Hills v. Gautreaux, 42 U.S. 284 (1976). As a remedy, the housing authority developed a program to assist public housing residents and those on waiting lists through the use of Section 8 subsidies in moving to private apartments in low-poverty neighborhoods within the city or to mostly white suburbs. See James E. Rosenbaum et al., Can the Kerner Commission's Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks?, 71 N.C. L. REV. 1517, 1522 (1993) [hereinafter Rosenbaum, Kerner Commission]. An administering nonprofit agency "finds landlords willing to participate in the program, notifies families as apartments become available, and counsels them about the . . . move; counselors accompany them to visit the units and communities." Id. Since 1976, over 4500 families have participated and over half of them have moved to predominantly white, middle-class suburbs. See id.; Janet Koven Levit, Rewriting Beginnings: The Lessons of Gautreaux, 28 J. MARSHALL L. REV. 57, 93 (1994). Gautreaux mothers are able to find employment more easily than their counterparts who remained in Chicago, and their children do better in school and are more likely to go to college or be employed after high school graduation. See James E. Rosenbaum & Susan J. Popkin, supra note 7, at 342; Rosenbaum, Kerner Commission, supra; James E. Rosenbaum et al., Social Integration of Low-Income Black Adults in Middle-Class White Suburbs, 38 SOC. PROBS. 448 (1991); James E. Rosenbaum et al., White Suburban Schools' Responsibilities to Low-Income Black Children: Sources of Success and Problems, URB. REV., Spring 1988, at 28. For an in-depth analysis of Gautreaux and subsequent remedies and policies, see Levit, supra.
34. The Gautreaux program grew out of a 1976 Supreme Court decision that determined that the Chicago Housing Authority had deliberately located its public housing in areas with high concentrations of poor African Americans. See Hills v. Gautreaux, 42 U.S. 284 (1976). As a remedy, the housing authority developed a program to assist public housing residents and those on waiting lists through the use of Section 8 subsidies in moving to private apartments in low-poverty neighborhoods within the city or to mostly white suburbs. See James E. Rosenbaum et al., Can the Kerner Commission's Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks?, 71 N.C. L. REV. 1517, 1522 (1993) [hereinafter Rosenbaum, Kerner Commission]. An administering nonprofit agency "finds landlords willing to participate in the program, notifies families as apartments become available, and counsels them about the . . . move; counselors accompany them to visit the units and communities." Id. Since 1976, over 4500 families have participated and over half of them have moved to predominantly white, middle-class suburbs. See id.; Janet Koven Levit, Rewriting Beginnings: The Lessons of Gautreaux, 28 J. MARSHALL L. REV. 57, 93 (1994). Gautreaux mothers are able to find employment more easily than their counterparts who remained in Chicago, and their children do better in school and are more likely to go to college or be employed after high school graduation. See James E. Rosenbaum & Susan J. Popkin, supra note 7, at 342; Rosenbaum, Kerner Commission, supra; James E. Rosenbaum et al., Social Integration of Low-Income Black Adults in Middle-Class White Suburbs, 38 SOC. PROBS. 448 (1991); James E. Rosenbaum et al., White Suburban Schools' Responsibilities to Low-Income Black Children: Sources of Success and Problems, URB. REV., Spring 1988, at 28. For an in-depth analysis of Gautreaux and subsequent remedies and policies, see Levit, supra.
35. The Gautreaux program grew out of a 1976 Supreme Court decision that determined that the Chicago Housing Authority had deliberately located its public housing in areas with high concentrations of poor African Americans. See Hills v. Gautreaux, 42 U.S. 284 (1976). As a remedy, the housing authority developed a program to assist public housing residents and those on waiting lists through the use of Section 8 subsidies in moving to private apartments in low-poverty neighborhoods within the city or to mostly white suburbs. See James E. Rosenbaum et al., Can the Kerner Commission's Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks?, 71 N.C. L. REV. 1517, 1522 (1993) [hereinafter Rosenbaum, Kerner Commission]. An administering nonprofit agency "finds landlords willing to participate in the program, notifies families as apartments become available, and counsels them about the . . . move; counselors accompany them to visit the units and communities." Id. Since 1976, over 4500 families have participated and over half of them have moved to predominantly white, middle-class suburbs. See id.; Janet Koven Levit, Rewriting Beginnings: The Lessons of Gautreaux, 28 J. MARSHALL L. REV. 57, 93 (1994). Gautreaux mothers are able to find employment more easily than their counterparts who remained in Chicago, and their children do better in school and are more likely to go to college or be employed after high school graduation. See James E. Rosenbaum & Susan J. Popkin, supra note 7, at 342; Rosenbaum, Kerner Commission, supra; James E. Rosenbaum et al., Social Integration of Low-Income Black Adults in Middle-Class White Suburbs, 38 SOC. PROBS. 448 (1991); James E. Rosenbaum et al., White Suburban Schools' Responsibilities to Low-Income Black Children: Sources of Success and Problems, URB. REV., Spring 1988, at 28. For an in-depth analysis of Gautreaux and subsequent remedies and policies, see Levit, supra.
36. The Gautreaux program grew out of a 1976 Supreme Court decision that determined that the Chicago Housing Authority had deliberately located its public housing in areas with high concentrations of poor African Americans. See Hills v. Gautreaux, 42 U.S. 284 (1976). As a remedy, the housing authority developed a program to assist public housing residents and those on waiting lists through the use of Section 8 subsidies in moving to private apartments in low-poverty neighborhoods within the city or to mostly white suburbs. See James E. Rosenbaum et al., Can the Kerner Commission's Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks?, 71 N.C. L. REV. 1517, 1522 (1993) [hereinafter Rosenbaum, Kerner Commission]. An administering nonprofit agency "finds landlords willing to participate in the program, notifies families as apartments become available, and counsels them about the . . . move; counselors accompany them to visit the units and communities." Id. Since 1976, over 4500 families have participated and over half of them have moved to predominantly white, middle-class suburbs. See id.; Janet Koven Levit, Rewriting Beginnings: The Lessons of Gautreaux, 28 J. MARSHALL L. REV. 57, 93 (1994). Gautreaux mothers are able to find employment more easily than their counterparts who remained in Chicago, and their children do better in school and are more likely to go to college or be employed after high school graduation. See James E. Rosenbaum & Susan J. Popkin, supra note 7, at 342; Rosenbaum, Kerner Commission, supra; James E. Rosenbaum et al., Social Integration of Low-Income Black Adults in Middle-Class White Suburbs, 38 SOC. PROBS. 448 (1991); James E. Rosenbaum et al., White Suburban Schools' Responsibilities to Low-Income Black Children: Sources of Success and Problems, URB. REV., Spring 1988, at 28. For an in-depth analysis of Gautreaux and subsequent remedies and policies, see Levit, supra.
37. See Abraham, supra note 19, at 33.
38. See Mulroy, supra note 4, at 134-39; Levit, supra note 20, at 95-96 (noting that demand for Gautreaux program certificates far outweighs supply); Abraham, supra note 19, at 33; Schill, supra note 19, at 531. Other explanations for the Section 8 program's failure include subsidy recipients who wish to remain in their own neighborhoods, an administrative fee structure that discourages PHAs from promoting moves to other jurisdictions, bureaucratic difficulties, lack of support services for tenants, rents in affluent communities that exceed the FMR, and units that fail to meet the HQS. See Mulroy, supra note 4, at 145-54; Abraham, supra note 19; Schill, supra note 19, at 547-51.
39. See supra note 5.
40. See Clements, supra note 5.
41. Id.
42. See Alexander Reid, Rental Subsidies Draw Fire in Cities, BOSTON GLOBE, Nov. 3, 1991, at North Weekly 1; see also Terry Wilson, Woes Mar Rent-Subsidy Plan, CHI. TRIB., Mar. 13, 1995, at Chicagoland 1.
43. See Alexander Reid, Rental Subsidies Draw Fire in Cities, BOSTON GLOBE, Nov. 3, 1991, at North Weekly 1; see also Terry Wilson, Woes Mar Rent-Subsidy Plan, CHI. TRIB., Mar. 13, 1995, at Chicagoland 1.
44. Wilson, supra note 26.
45. REINVENTION BLUEPRINT, supra note 11, at 10.
46. Id. at 8-11.
47. Id. at 13.
48. HUD estimates that at least 100,000 units of public housing will be lost; critics believe that number will be far higher. See NATIONAL HOUS. LAW PROJECT, THE RANGES FOR PUBLIC HOUSING RECOMMENDED IN HUD'S REINVENTION: FROM BLUEPRINT TO ACTION 7-8 (1995).
49. E.g., id.; National Hous. Law Project, A Critique of HUD's Reinvention Blueprint, 25 HOUSING L. BULL. 29 (1995).
50. E.g., id.; National Hous. Law Project, A Critique of HUD's Reinvention Blueprint, 25 HOUSING L. BULL. 29 (1995).
51. Housing Act of 1949, ch. 338, § 301(8)(c), Pub. L. No. 81-171, § 301, 63 Stat. 413, 423 (1949) (superseded in the 1974 general revision of the Housing Act of 1937 by Pub. L. No. 93-383, § 200(a), 88 Stat. 633, 653 (1974)).
52. 42 U.S.C. § 1437 (West 1994 & Supp. 1995).
53. 15 U.S.C. § 1691(a)(2) (1995) ("It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . because all or part of the applicant's income derives from any public assistance program . . . .").
54. Mulroy, supra note 4, at 136 (quoting a Section 8 recipient).
55. See Weicher, supra note 18, at 275; BLUEPRINT TO ACTION, supra note 18, at 28. Out of a total of 1.5 million subsidies issued, at least 300,000 Section 8 households were unable to use their subsidies in 1994. Telephone Interview with Gerald Benoit, Director of Rental Operations, Department of Public & Indian Housing, U.S. Department of Housing & Urban Development (Apr. 24, 1995) (providing the 1.5 million figure).
56. See Mulroy, supra note 4, at 139 (finding that suburbs are often closed to Section 8 tenants and that many Section 8 recipients have given up on the idea that Section 8 subsidies can be used to find housing in an area of one's choice); Interview with Nadine Cohen, Staff Attorney, Lawyers' Committee for Civil Rights Under Law, in Boston, Mass. (Apr. 11, 1995); Interview with Philip Tegeler, supra note 4; Interview with Sheri Williams, supra note 2.
57. See Mulroy, supra note 4, at 134 (citing a 1985 Boston study finding that 79% of participants were turned away by landlords who refused to participate in the Section 8 programs, despite the existence of a Massachusetts statute that prohibits discrimination against housing subsidy holders).
58. See id. at 136-37.
59. See, e.g., id.; Clements, supra note 5, at 7.
60. Interview with Sheri Williams, supra note 2. According to Sheri Williams, manager of the Boston MTO program, the negative stereotypes are accurate only in a very small number of cases. Williams believes that Section 8 tenants who attempt to move out of their high-poverty neighborhoods into unfamiliar surroundings are usually the most motivated to succeed and are unlikely to become problem tenants. Id.
61. See MASS. GEN. LAWS ANN. ch. 151B, § 4(10) (West 1992).
62. Interview with Sheri Williams, supra note 2.
63. Id.
64. Christopher P. McCormack, Note, Business Necessity in Title VIII: Importing an Employment Discrimination Doctrine into the Fair Housing Act, 54 FORDHAM L. REV. 563, 583-84 (1986).
65. Id. at 584. In the context of the FHA, landlords may employ income, credit history, and other objective, nonracial criteria in tenant selection only if the connection to business necessity is strong. Id. Landlords' decisions may also depend on personal preferences that are not related to race or any other protected category. For example, one landlord successfully cited a tenant's attitude and aggressiveness as reasons to refuse to rent to him. Id. at 585 & n.158 (citing Hamilton v. Miller, 477 F.2d 908, 910 (10th Cir. 1973)). Regardless of their reasons, landlords must be prepared to demonstrate that the criteria employed are rationally related to the legitimate end of securing rental payment. Id. at 584.
66. See, e.g., Linda Whitford, 13 Mass. Discr. L. Rep. 1001, 1027-28 (1991); Valerie Mercer, 10 Mass. Discr. L. Rep. 1370, 1389 (1988). Most of the cases cited in this Section are cases heard before the Massachusetts Commission Against Discrimination. Because there are only a few cases dealing with this type of discrimination in the regional reporters, this Article relies heavily upon local agency actions for can law.
67. 42 U.S.C. § 1437f(d)(1)(B)(ii) (1988 & Supp. V 1993); 24 C.F.R. §§ 882.215(c)(1), 887.213(a) (1995).
68. See Mulroy, supra note 4, at 162 n.11. After the PHA pays the landlord, it draws up a repayment agreement with the tenant for repayment directly to the agency.
69. See, e.g., Attorney General v. Brown, 511 N.E.2d 1103, 1108 (Mass. 1987) (landlord claimed that he lost money when he could not collect the last month's rent in advance because he could not earn interest on that money); Jocelyn French, 12 Mass. Discr. L. Rep. 1041 (1990); Valerie Mercer, 10 Mass. Discr. L. Rep. 1370, 1389 (1988). In many states this argument would be moot, since landlords are often required to pay the interest on security deposits back to their tenants.
70. 24 C.F.R. §§ 882.112(a), 887.21(a) (1995).
71. See Mulroy, supra note 4, at 162 n.10.
72. 24 C.F.R. § 882.105(b) (1995).
73. Mulroy, supra note 4, at 134-36.
74. See 42 U.S.C. § 1437f(c)(1) (1988 & Supp. V 1993).
75. See 42 U.S.C. §§ 1437f(c)(1), (c)(2)(B) (1988 & Supp. V 1993); 42 U.S.C. §§ 1437f(c)(3)(B)(i) (Supp. V 1993); 24 C.F.R. § 882.108(a)(2) (1995).
76. 24 C.F.R. § 882.215 (1995). Under HUD regulations, "good cause" includes a desire to rent the unit for a higher price. Other examples include a tenant history of disturbing neighbors or destroying property, criminal activity by a tenant involving physical violence, and the landlord's desire to reclaim the unit for personal use. Id.
77. See Attorney General v. Brown, 511 N.E.2d 1103, 1107 n.7 (Mass. 1987).
78. See Peter S. Canellos, Against Aim, Rent Subsidies Cluster Poor in New Places, BOSTON GLOBE, Mar. 15, 1992, at Metro 1. Admittedly, when landlords can lease their units to middle-income tenants who have no problem paying their rent, Section 8's economic benefits to landlords are somewhat diminished.
79. See, e.g., Mulroy, supra note 4, at 136; Linda Whitford, 13 Mass. Discr. L. Rep. 1001, 1008 (1991) (describing a landlord who "did not want the government coming in and telling him what be can and cannot do with his apartment").
80. See, e.g., Jocelyn French, 12 Mass. Discr. L. Rep. 1041, 1047 (1990).
81. See, e.g., Diane Thompson, 14 Mass. Discr. L. Rep. 1127, 1129 (1992 ); Jocelyn French, 12 Mass. Discr. L. Rep. 1041, 1049 (1990); William D. Hoyt, 11 Mass. Discr. L. Rep. 1095, 1105 (1989).
82. Linda Whitford, 13 Mass. Discr. L. Rep. 1001, 1026 (1991); see also Christy Parker, 15 Mass. Discr. L. Rep. 1337, 1354 (1993) (holding that landlord offered no evidence showing that the administrative burdens of renting to Section 8 tenants were any more time consuming than administering to tenants who had fallen behind in their rents); Jocelyn French, 12 Mass. Discr. L. Rep. 1041, 1060 (1990) (holding that the mere assertion of inconvenience caused by Section 8 requirements is not a sufficient justification).
83. 551 N.E.2d 1103 (Mass. 1957).
84. Mai Richards, 12 Mass. Discr. L. Rep. 1345, 1354 (1990).
85. See, e.g,. Christy Parker, 15 Mass. Discr. L. Rep. 1337, 1353 (1993) (holding that the landlord provided no proof that the Section 8 program was burdensome).
86. See William D. Hoyt, 11 Mass. Discr. L. Rep. 1095 (1989).
87. See supra note 26 and accompanying text.
88. See, e.g., Peyton v. Reynolds Assocs., 955 F.2d 247, 249 (4th Cir. 1992).
89. See Linda Whitford, 13 Mass. Discr. L. Rep. 1001, 1027-29 (1991); cf. Valerie Mercer, 10 Mass. Discr. L. Rep. 1370, 1389-90 (1988) (holding that a landlord could not refuse to rent to a Section 8 recipient because he wanted to rent to a non-Section 8 tenant whose lease would not provide for garbage pick-up when such garbage pick-up was required by state law). Whether housing codes are too strict to allow low-income landlords to remain solvent or whether the codes should be rigidly or selectively enforced is not addressed in this Article.
90. See Weicher, supra note 18, at 283.
91. See id. at 283-84.
92. Cushing N. Dolbeare & Anne J. Stone, Women and Affordable Housing, in AMERICAN WOMAN 1990-91: A STATUS REPORT 94, 105 (Sara E. Rix ed., 1990); Clements, supra note 5, at 18 ("[F]ederal law does not require landlords to rent to subsidy holders.").
93. 42 U.S.C. § 1437f(t) (1988).
94. Pub. L. No. 100-242, § 147 (1988).
95. The statute provides that no landlord who has entered into a contract for housing assistance payments under this section on behalf of any tenant in a multifamily housing project shall refuse to lease any available dwelling unit . . . to a holder of a voucher . . . and to enter into a voucher contract respecting such unit, a proximate cause of which is the status of such prospective tenant as holder of such voucher. 42 U.S.C. § 1437f(t)(1)(A)(B) (1988).
96. See Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1277, 1283 (7th Cir. 1995) (stating that § 1437f(t) creates an implied cause of action for prospective tenants who are denied housing because of their status as Section 8 recipients and finding that defendant landlord violated the statute); Riddick v. Summit House, Inc., 835 F. Supp. 137, 143-45 (S.D.N.Y. 1993) (stating that plaintiff had an implied right of action and that landlord's disagreement with HUD over contract terms should not deprive plaintiff of housing); Glover v. Crestwood Lake Section 1 Holding Corps., 746 F. Supp. 301, 308-09 (S.D.N.Y. 1990) (holding that § 1437f(t) creates a private right of action for Section 8 tenants against private landlords and that defendant landlord's refusal to enter into a Section 8 contract with plaintiffs must be construed as a refusal to rent to a qualified Section 8 applicant, in violation of § 1437f(t)).
97. See Peyton v. Reynolds Assocs., 955 F.2d 247, 252 (4th Cir. 1992) (finding that landlord's objection to one-year lease requirement imposed by local PHA was reasonable and not a pretext for discriminating against Section 8 recipients).
98. See id. at 253 (distinguishing Glover v. Crestwood Lake Section 1 Holding Corps., 746 F. Supp. 301 (S.D.N.Y. 1990)). However, the court pointed out that the shorter lease term requested by the landlord was allowed under the Section 8 provision, so the landlord's refusal to rent to the tenant was not justified. Id. at 250-51.
99. See CONN. GEN. STAT. ANN. § 46a-64 (West Supp. 1995); D.C. CODE ANN. § 1-2515 (Supp 1995); MINN. STAT. ANN. § 363.03, subd. 2(1) (West 1995); N.D. CENT. CODE § 14-02.4-12 (1991); UTAH CODE ANN. § 57-21-5 (Supp. 1993); VT. STAT. ANN. tit. 9, § 4503 (1993); WIS. STAT. ANN. § 101.22 (West Supp. 1994).
100. See CONN. GEN. STAT. ANN. § 46a-63(3) (West Supp. 1995); D.C. CODE ANN. § 1-2502 (Supp 1981) (defining source of income as including any form of federal payment); MINN. STAT. ANN. § 363.01, subd. 42 (West 1991); N.D. CENT. CODE § 14-02.4-02 (1991)
101. See UTAH CODE ANN. § 57-21-5 (Supp. 1993); VT. STAT. ANN. tit. 9, § 4503 (1993); WIS. STAT. ANN. § 101.22 (West Supp. 1994).
102. See, e.g., Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1282-83 (7th Cir 1995) (finding that "lawful source of income" under the Wisconsin housing discrimination statute did not include housing subsidies because the subsidies have no monetary value independent of the voucher holder and the apartment sought).
103. See ME. REV. STAT. ANN. tit. 5, § 4582 (West Supp. 1994) ("It is unlawful housing discrimination . . . [f]or any person furnishing rental premises . . . to refuse to rent . . . to any individual who is a recipient of federal, state or local public assistance, including . . . housing subsidies primarily because of the individual's status as recipient . . . ."); MASS. GEN. L. ch. 151B, § 4(10) (1994) ("It shall be an unlawful practice . . . for any person furnishing . . . rental accommodations to discriminate against any individual . . . who is a tenant receiving federal, state, or local housing subsidies . . . because the individual is such a recipient . . . ."); N.J. STAT. ANN. § 2A:42-100 (West 1987) ("No person . . . shall refuse to rent or lease any house or apartment to another person because of . . . the source of any lawful rent payment to be paid for the house or apartment.").
104. Mass. GEN. L. ch. 151B, § 4(10) (1994).
105. CAL. CIV. CODE § 51 (West Supp. 1995).
106. See 59 Op. Att'y Gen. 223 (1976).
107. See Cruz Management Co. v. Wideman, 633 N.E.2d 384, 389 (Mass. 1994); Attorney General v. Brown, 511 N.E.2d 1103, 1105 (Mass. 1987).
108. See, e.g., Stevenson v. San Francisco Hous. Auth., 29 Cal. Rptr. 2d 398, 405 (Cal. Ct. App. 1994); Cruz Management, 633 N.E.2d at 389; Brown, 511 N.E.2d at 1106; Soliman v. Cepeda, 634 A.2d 1057, 1060 (N.J. Super. Ct. Law Div. 1993).
109. See Brown, 511 N.E.2d at 1106; Soliman, 634 A.2d at 1060.
110. 511 N.E.2d 1103 (Mass. 1987). Brown has lost some of its precedential value because it involved the interpretation of an earlier version of the current Massachusetts statute that required the landlord's refusal to rent to be based solely on the applicant's status as a recipient of a housing subsidy.
111. 651 A.2d 101 (N.J. Super. Ct. App. Div. 1994).
112. 54 F.3d 1272 (7th Cir. 1995).
113. Bronson v. Crestwood Lake Section 1 Holding Corp., 724 F. Supp. 148, 154-55 (S.D.N.Y. 1989).
114. Id. at 153-55. The Bronson court relied on Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988), and United States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir. 1988), to apply the employment discrimination paradigm developed in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), and Griggs v. Duke Power Co., 401 U.S. 424, 429-36 (1971) to housing cases.
115. Bronson, 724 F. Supp. at 155-56.
116. 54 F.3d 1272 (7th Cir. 1995).
117. Id. at 1280-81.
118. Id. at 1280.
119. Id.
120. Id.
121. Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1280 (7th Cir. 1995).
122. The amended phrase would be added to 42 U.S.C. § 3604(a), (b), (c), (d), and (e).
123. The definition would be added at 42 U.S.C. § 3602.
124. The following analysis considers only the immediate financial costs and benefits of adopting a nondiscrimination provision. The added monetary and nonmonetary benefits that can be gained from residing in an economically and racially integrated community are not included in the analysis.
125. See supra part I.B.
126. For the purpose of this analysis, assume that the housing subsidies are in the form of vouchers, not certificates. If the present analysis would result in alternate outcomes for certificate holders, that difference will be noted in the footnotes.
127. In this analysis, the HQS will be held constant. The effect of HQS and the implied warranty of habitability on the analysis will be discussed below. See infra part III.A.2.
128. Certificate holders, because their amount of contribution is fixed at 30% of their income, do not have the option of paying more for rent. They will thus not be able to rent Level 2 apartments at all if the rents are pushed over the FMR.
129. Subsidy recipients might decide not to pay more for the Level 2 apartments because the marginal utility of Level 2 amenities is less than the marginal utility of other personal expenditures.
130. See CHARLES L. LEVEN ET AL., NEIGHBORHOOD CHANGE: LESSONS IN THE DYNAMICS OF URBAN DECAY 37-47 (1976), excerpted in HOUSING IN AMERICA: PROBLEMS AND PERSPECTIVES 192-200 (Roger Montgomery & Daniel R. Mandelker eds., 2d ed. 1979).
131. See CHARLES L. LEVEN ET AL., NEIGHBORHOOD CHANGE: LESSONS IN THE DYNAMICS OF URBAN DECAY 37-47 (1976), excerpted in HOUSING IN AMERICA: PROBLEMS AND PERSPECTIVES 192-200 (Roger Montgomery & Daniel R. Mandelker eds., 2d ed. 1979).
132. Besides prohibiting discrimination by landlords in tenant selection, the FHA also prevents landlords from discriminating against members of protected categories "in the terms, conditions, or privileges of sale or rental of a dwelling." 42 U.S.C. § 3604(b) (1995).
133. See 24 C.F.R. §§ 882.109, 887.251 (1995).
134. See Robin Powers Kinning, Selective Housing Code Enforcement attd Low-Income Housing Policy: Minneapolis Case Study, 21 FORDHAM URB. L.J. 159, 195 (1993) (arguing that a local movement of code enforcement in these localities will necessarily increase the supply of apartments available for Section 8 tenants).
135. See 24 C.F.R. §§ 882.209(h)(1), 887.207(b)(2) (1995).
136. Id. at §§ 882.211(b), 887.257(a).
137. Id. at § 887.261(a).
138. Id. at §§ 882.209(h)(1), 882.211(c), 887.261(a). If the PHA terminates the housing assistance payments, in most circumstances it must issue a new Section 8 certificate or voucher to the tenant to use elsewhere. Id. at §§ 882.211(c), 887.261(b).
139. See Schill, supra note 19, at 528.
140. An argument can be made that the HQS themselves are overly strict. HUD's Section 8 standards are "higher than any other developed by HUD, the Congressional Budget Office, or the Office of Management and Budget." Michael R. Tein, Comment, The Devaluation of Nonwhite Community in Remedies for Subsidized Housing Discrimination, 140 U. PENN. L. REV. 1463, 1497 n.152 (1992) (citations omitted).
141. See Craig A. Arnold, Ignoring the Rural Underclass: The Biases of Federal Housing Policy, 2 STAN. L. & POL'Y REV. 191, 196-97 (1990) (arguing that in the 1970s EHAP study, housing allowances did not prompt housing rehabilitation because the FMRs were not large enough to pay for the repairs required to meet the HQS). For a description and analysis of EHAP, see supra note 18.
142. Currently many subsidy holders have difficulty finding apartments that meet the HQS and frequently lose their subsidies before they can use them. See Tein, supra note 121, at 1497 n.152.
143. See, e.g., Theresa Clark, 14 Mass. Discr. L. Rep. 1185, 1189 (1992).
144. See Mulroy, supra note 4, at 142-43.
145. See, e.g., Neil K. Komesar, Return to Slumville: A Critique of the Ackerman Analysis of Housing Code Enforcement and the Poor, 82 YALE L.J. 1175, 1175-91 (1973); Charles J. Meyers, The Covenant of Habitability and the American Law Institute, 27 STAN. L. REV. 879, 889-92 (1975). But see Bruce Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971) (positing that under circumstances in which landlords are unable to pass on the costs of housing code maintenance to tenants through rent increases, income could be redistributed from landlords to tenants without jeopardizing the housing supply); Richard S. Markovitz, The Distributive Impact, Allocative Efficiency, and Overall Desirability of Ideal Housing Codes: Some Theoretical Clarifications, 89 HARV. L. REV. 1815, 1828-30 (1976) (asserting that the benefits of housing code enforcement to poor tenants outweigh harms to landlords, taxpayers, and the poorest tenants). See generally Kinning, supra note 115, at 16-70 (reviewing the academic literature on the long-standing code enforcement debate).
146. See, e.g., Neil K. Komesar, Return to Slumville: A Critique of the Ackerman Analysis of Housing Code Enforcement and the Poor, 82 YALE L.J. 1175, 1175-91 (1973); Charles J. Meyers, The Covenant of Habitability and the American Law Institute, 27 STAN. L. REV. 879, 889-92 (1975). But see Bruce Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971) (positing that under circumstances in which landlords are unable to pass on the costs of housing code maintenance to tenants through rent increases, income could be redistributed from landlords to tenants without jeopardizing the housing supply); Richard S. Markovitz, The Distributive Impact, Allocative Efficiency, and Overall Desirability of Ideal Housing Codes: Some Theoretical Clarifications, 89 HARV. L. REV. 1815, 1828-30 (1976) (asserting that the benefits of housing code enforcement to poor tenants outweigh harms to landlords, taxpayers, and the poorest tenants). See generally Kinning, supra note 115, at 16-70 (reviewing the academic literature on the long-standing code enforcement debate).
147. See, e.g., Neil K. Komesar, Return to Slumville: A Critique of the Ackerman Analysis of Housing Code Enforcement and the Poor, 82 YALE L.J. 1175, 1175-91 (1973); Charles J. Meyers, The Covenant of Habitability and the American Law Institute, 27 STAN. L. REV. 879, 889-92 (1975). But see Bruce Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971) (positing that under circumstances in which landlords are unable to pass on the costs of housing code maintenance to tenants through rent increases, income could be redistributed from landlords to tenants without jeopardizing the housing supply); Richard S. Markovitz, The Distributive Impact, Allocative Efficiency, and Overall Desirability of Ideal Housing Codes: Some Theoretical Clarifications, 89 HARV. L. REV. 1815, 1828-30 (1976) (asserting that the benefits of housing code enforcement to poor tenants outweigh harms to landlords, taxpayers, and the poorest tenants). See generally Kinning, supra note 115, at 16-70 (reviewing the academic literature on the long-standing code enforcement debate).
148. See, e.g., Neil K. Komesar, Return to Slumville: A Critique of the Ackerman Analysis of Housing Code Enforcement and the Poor, 82 YALE L.J. 1175, 1175-91 (1973); Charles J. Meyers, The Covenant of Habitability and the American Law Institute, 27 STAN. L. REV. 879, 889-92 (1975). But see Bruce Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971) (positing that under circumstances in which landlords are unable to pass on the costs of housing code maintenance to tenants through rent increases, income could be redistributed from landlords to tenants without jeopardizing the housing supply); Richard S. Markovitz, The Distributive Impact, Allocative Efficiency, and Overall Desirability of Ideal Housing Codes: Some Theoretical Clarifications, 89 HARV. L. REV. 1815, 1828-30 (1976) (asserting that the benefits of housing code enforcement to poor tenants outweigh harms to landlords, taxpayers, and the poorest tenants). See generally Kinning, supra note 115, at 16-70 (reviewing the academic literature on the long-standing code enforcement debate).
149. See, e.g., Duncan Kennedy, The Effect of the Warranty of Habitability on Low Income Housing: "Milking" and Class Violence, 15 FLA. ST. U. L.
150. This is the conclusion reached by at least one critic of HUD's Reinvention Blueprint. See National Hous. Law Project, A Critique of HUD's Reinvention Blueprint, 25 HOUSING L. BULL. 29, 33 (1995) (asserting that in several big cities, many former public housing residents will become homeless after their buildings are demolished).
151. This analysis assumes that the federal government is merely transferring existing public housing funds to the Section 8 program, not infusing additional money into the system.
152. See Kennedy, supra note 127, at 486-88.
153. 1, making it plausible that affordable apartments would be available in both neighborhoods. In the Chicago area, for example, the FMRs in the northern suburbs are higher than those in the southern and western suburbs. Clements, supra note 5.
154. 2 apartments at all if the rents are pushed over the FMR.
155. A large number of Section 8 subsidies introduced into a housing market will cause rent inflation and, consequently, an increase in the FMR for that market. See Hartman, supra note 8, at 1568 n.31; Levit, supra note 20, at 91 n.174 ("When demand is stimulated, as it may be through the use of some type of market-oriented housing allowance, the nature of the housing market does not allow for quick supplier response. Therefore, a housing subsidy program that increased demand without effecting great increases in supply would merely lead to an increase in the cost of housing and, in reality, negate the effect of the housing allowance."). But see EXPERIMENTING WITH HOUSING ALLOWANCES, supra note 18, at 26, 179-85 (observing that housing subsidies did not inflate marketwide housing costs in Green Bay, Wisconsin, or South Bend, Indiana); Larry J. Ozanne & James P. Zais, Communitywide Effects of Housing Allowances, in HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT, supra note 18, at 207, 208-10 (finding that EHAP did not significantly increase housing demand, resulting in little, if any, rent inflation); Weicher, supra note 18, at 278 ("The findings are clear-cut. Existing housing subsidies have not resulted in rent inflation."). Weicher did concede, however, that markets with a great deal of poor quality housing may experience a small amount of inflation due to the increased demand for housing meeting the HQS. Id. at 279. He also acknowledged that on a short-term basis, before the government or the private market had a chance to respond to the increased demand by increasing supply, rents would be driven up or down by the presence of Section 8 subsidy holders in a housing market. Id. at 280. Ozanne and Zais agreed that if housing subsidies are infused into a market in sufficient amounts to increase demand, rents are likely to increase. See Ozanne & Zais, supra, at 213-20.
156. A large number of Section 8 subsidies introduced into a housing market will cause rent inflation and, consequently, an increase in the FMR for that market. See Hartman, supra note 8, at 1568 n.31; Levit, supra note 20, at 91 n.174 ("When demand is stimulated, as it may be through the use of some type of market-oriented housing allowance, the nature of the housing market does not allow for quick supplier response. Therefore, a housing subsidy program that increased demand without effecting great increases in supply would merely lead to an increase in the cost of housing and, in reality, negate the effect of the housing allowance."). But see EXPERIMENTING WITH HOUSING ALLOWANCES, supra note 18, at 26, 179-85 (observing that housing subsidies did not inflate marketwide housing costs in Green Bay, Wisconsin, or South Bend, Indiana); Larry J. Ozanne & James P. Zais, Communitywide Effects of Housing Allowances, in HOUSING VOUCHERS FOR THE POOR: LESSONS FROM A NATIONAL EXPERIMENT, supra note 18, at 207, 208-10 (finding that EHAP did not significantly increase housing demand, resulting in little, if any, rent inflation); Weicher, supra note 18, at 278 ("The findings are clear-cut. Existing housing subsidies have not resulted in rent inflation."). Weicher did concede, however, that markets with a great deal of poor quality housing may experience a small amount of inflation due to the increased demand for housing meeting the HQS. Id. at 279. He also acknowledged that on a short-term basis, before the government or the private market had a chance to respond to the increased demand by increasing supply, rents would be driven up or down by the presence of Section 8 subsidy holders in a housing market. Id. at 280. Ozanne and Zais agreed that if housing subsidies are infused into a market in sufficient amounts to increase demand, rents are likely to increase. See Ozanne & Zais, supra, at 213-20.
157. See LEVEN ET AL., supra note 112, at 192-93.
158. 2 residents' housing preferences.
159. 2 changed, prompting them to support new construction.
160. See, e.g., Pennel v. City of San Jose, 485 U.S. 1, 19-23 (1988) (Scalia, J., concurring in part and dissenting in part).
161. Id.
162. Id. at 22.
163. See Gia L. Cincone, Note, Land Reform and Corporate Redistribution: The Republican Legacy, 39 STAN. L. REV. 1229, 1229-30 (1987) (giving examples of redistribution and stating that despite this country's concern with the security of private property, "some degree of redistribution is . . . widely accepted as a necessary adjunct to our market-based economy").
164. See, e.g., Pennel, 485 U.S. at 12-13.
165. See Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 659 (1988).
166. See id.
167. See, e.g., Ackerman, supra note 126, at 1169-74.
168. See Singer, supra note 142, at 681.
169. See Ackerman, supra note 126, at 1170-72.
170. Pennel v. City of San Jose, 485 U.S. 1, 22 (Scalia, J., concurring in part and dissenting in part) (arguing that landlords' responsibility for high rents may justify rent regulation).
171. See MASSEY & DENTON, supra note 8, at 195-97; Richard H. Sander, Comment, Individual Rights and Demographic Realities: The Problem of Fair Housing, 82 NW. U. L. REV. 874, 903 (1988).
172. MASSEY & DENTON, supra note 8, at 196, 198-99.
173. See id. at 196-97 (stating that 1970s investigations found that "only 20% to 30% of complaints filed with the Secretary ever reached formal mediation, and nearly half of the complaints that did so remained in noncompliance . . . . HUD made virtually no effort to follow up or monitor compliance in the conciliation agreements it reached").
174. Id.
175. Id. at 199-200.
176. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (1988) (codified as amended at 28 U.S.C. §§ 2341-2342, 42 U.S.C. §§ 3601-3619, 3631); see also MASSEY & DENTON, supra note 8, at 210-11.
177. See MASSEY & DENTON, supra note 8, at 200.
178. See id.
179. See id. at 211.
180. See 42 U.S.C. § 1437f(t) (1988 & Supp. V 1993) (prohibiting landlords who have accepted one Section 8 tenant from discriminating against subsequent tenants because of their status as rental subsidy holders).
181. See supra notes 76-80 and accompanying text.
182. MASSEY & DENTON, supra note 8, at 211.
183. Cf. Sander, supra note 148, at 903 (stating that integration may actually increase racial hostility).
184. Id.
185. Interview with Nadine Cohen, supra note 38.
186. See MASSEY & DENTON, supra note 8, at 198.
187. Insufficient FMRs have been cited as one reason that Section 8 recipients have difficulty using their subsidies. In a 1985 Boston study, 77% of Section 8 respondents experienced landlords who refused to rent to them because of the low FMR levels set by the administering PHA. See Mulroy, supra note 4, at 134.
188. See Hartman, supra note 8, at 1565 (reporting that participation rates in EHAP soared when units rented to Section 8 tenants did not have to meet housing quality standards). This Article does not argue for elimination of the HQS but that HUD should explore the possibility of easing them somewhat.
189. See Mulroy, supra note 4, at 143, 144, 156; Rosenbaum, Kerner Commission, supra note 20, at 1522; Clements, supra note 5 ("[B]y not counseling its family clients on housing opportunities in other [less segregated] parts of the county and by not helping them find landlords in those areas willing to take the [Section 8] families, [the administering PHA] is helping maintain a racially segregated, dual housing market.").
190. See Calmore, supra note 8, at 1489.