NB: This post is part of a series in our Race for Profit symposium. Read all posts here.
As Keeanga-Yamahtta Taylor demonstrates in Race for Profit, housing exclusion, instability, and segregation are all racialized in nature, and sewn into the very fabric of American institutions, policies, and value systems. During the height of redlining in the mid-20th century, for example, a single black household in a middle-class area could make the whole neighborhood “risky” for mortgage loans in the eyes of the federal government. Black families – prohibited from buying homes in the suburbs in the 1940s, 50s, and into the 60s by the Federal Housing Administration – gained none of the equity appreciation that suburban whites gained over that crucial period. Denied mortgages, Black people were often involuntarily driven into the rental housing market, where they faced ever more scarcity and less affordable rental housing.
Today, more than fifty years after the passage of the Fair Housing Act of 1968’s prohibition against housing discrimination, we find that exploitive real estate practices and the inequities that flow from them are not merely artifacts of history. Instead, these inequitable practices, particularly in the rental context, continue to show up in any number of permutations. They may appear as realtors showing Black renters fewer options (a 2013 study by the Urban Institute and HUD for example showed that Black renters saw about 11 percent fewer rental units than others). It may appear as “exclusionary zoning” practices that discourage density and multifamily buildings in wealthier, whiter areas. It may take the form of tenants with housing choice vouchers unable to rent in higher income neighborhoods, causing a concentration in so called “low opportunity” districts.
Through my work as a housing attorney, I’ve seen the continued impact of structural housing injustice on low-income tenants, particularly for Black women in Philadelphia, the site of much of Taylor’s powerful book. Although the focus in Race for Profit is on the role of systemic racism and predatory inclusion in the context of home ownership, the aftermath of those failures has led to exploitation in the rental context. Below, I focus on one issue – eviction records – and highlight some large-scale and individual approaches to ameliorating the problems Taylor encourages us to confront.
In places like Maryland and Philadelphia, the majority of severely rent-burdened people are single mothers and overwhelmingly people of color. It is not a coincidence, then, that who gets evicted from rental housing falls along racial and gender lines – most frequently impacting Black women and their children, and in Philadelphia, impacting Black families disproportionately in spite of their level of income or education. Each eviction filing carries with it a lifelong blemish on a person’s tenancy records, regardless of the outcome of the case. Even if the tenant prevails in court or enters amicable agreements to preserve housing, they continue to face housing barriers when prospective landlords misinterpret old court filings and employ blacklisting practices with blanket denials of applicants with eviction records.
The consequences of eviction records, then, go far beyond temporary displacement and loss of shelter. Eviction records mean loss of housing subsidy vouchers, ineligibility for other public housing programs, and ineligibility for private housing, leading to dangerous cycles of poverty and instability. Once tenants have an eviction case filed against them it’s nearly impossible to find good housing. Often, the only landlords who will consider renting to tenants with eviction records are operating unsafe, substandard housing. And unlike a criminal record, there is currently no possibility of getting the record of an eviction filing sealed or expunged from your tenancy record in Philadelphia, even if you are able to get the judgment itself satisfied or vacated, or where the case was withdrawn, or when there is a judgment in favor of the tenant. As Merf Ehman notes, tenant eviction records used in tenant screening reports “may be deceptive and reliance on them problematic, because even if the tenant was the winning party in the action or a settlement was reached, the report may say nothing about these critical details.” An eviction filing is often used as a retaliatory tactic against tenants, as landlords are well aware of the consequences of the filing for a tenant’s future rental prospects. Such filings usually only tell one side of the story, despite having the power to create lifelong housing instability.
What can cities – and the lawyers who live in them – do to fight this particular form of housing injustice? Based on a survey of approaches outlined in a Shriver Center Clearinghouse article, there are three broad categories of intervention that states and cities have taken to limit access to eviction records: automatic and discretionary sealing of records, regulation of tenant screening reports, and regulation of housing court records in rental decisions.
Landlords frequently use tenant screening reports produced by tenant screening companies, among other means, to make decisions about prospective applicants. Often these screening reports, compiled from housing courts and aggregated with other available information about a tenant, contain inaccuracies or incomplete information. The screening reports are covered under the federal Fair Credit Reporting ACT (FCRA), which ensures accuracy of credit reports and provides some limited opportunities for tenants to correct errors on their eviction records. Based on the FCRA’s limitations, several states have enacted additional protections to regulate and improve the accuracy of tenant screening reports. Minnesota, for example, requires tenant screening bureaus to include the tenant’s full name and birth date, the basis for and outcome for housing court proceedings included in the report, and tenant screening bureaus must allow tenants to include a 100-word explanation about any disputed information in the report. The bureau must remove information about expunged files from its reports.
A second option for intervention is to file suit. Recently, the ACLU, Virginia Poverty Law Center, and the Northwest Justice Project in Seattle, Washington filed a federal housing discrimination case, alleging violations of the Fair Housing Act when a rental company refused to consider the tenant’s application due to a blanket screening policy denying applicants with eviction histories, regardless of the outcome of the case. The case argues that such blanket policies disproportionately impacts African Americans, and Black women in particular, due to Black women being disproportionately more likely to have an eviction filing. Importantly, under a disparate impact theory that alleges a “disproportionate negative impact on members of legally protected groups even though the challenged practice does not refer to characteristics of the group,” unintentional discrimination can still be considered discrimination for the purposes of the Fair Housing Act. The Smith case – seizing on the disparate impact theory — is one of the first challenges under the Fair Housing Act to focus on “intersectional race and sex housing discrimination, highlighting how African-American women are especially impacted by the use of these blanket screening policies.”
Finally, consider localized strategies and individual approaches. In my former capacity as a housing attorney at Community Legal Services of Philadelphia – an organization Taylor highlights in her chapter on Black women’s organizing in response to HUD’s homeownership programs – I have used fair housing violations complaints to prevent eviction filings that would have an adverse impact on tenants’ records. One client story demonstrates how exploring such strategies can result in positive outcomes. Client Alex (a pseudonym) a young African American mother of two young children, lived in a building converted from an old warehouse in a gentrifying area of the city. She came to CLS with twelve months of unresolved maintenance concerns. Upon investigation, we learned that the landlord did not have a valid rental license and had not provided her with a certificate of rental suitability or lead safety certification. Alex did not know that she was not obligated to pay rent under these circumstances, so she had attempted to negotiate a payment plan with the landlord for backrent. The landlord rejected her proposed payment arrangement, converted her lease to month-to-month, and threatened her with eviction. After further investigation, we learned that other tenants in the building – specifically, white tenants – had been able to get payment plans or even get reassigned a unit after experiencing similar maintenance issues in the building.
I filed two complaints on Alex’s behalf, one with the Fair Housing Commission for retaliation, and another with the Philadelphia Commission on Human Relations for race and familial discrimination, based in part on the theory recently developed in the Smith case. The complaints included an injunction preventing the landlord from filing an eviction on the basis of the impact the filing would have on Alex and her family’s future prospects, and citing the disproportionate impact of eviction filings against Black women in Philadelphia as cited in numerous reports. We settled the case at a hearing, where the landlord agreed to waive over $10,000 worth of rental arrears, return the security deposit, clear the tenant’s record, avoid an eviction filing, and other benefits.
As Taylor powerfully underscores, it is by design that America’s housing system – both rental and homeownership – is rife with inequities that disproportionately impact Black women and families. It is only by purposeful and intentional design of better policies and long-term systemic solutions that we can begin to unravel those structural and institutional inequities that consistently leave Black families and other marginalized and vulnerable people behind. These policies must be resolute in their intent to end or reduce housing instability and homelessness in recognition that housing is the most important stabilizing factor for all individuals, as a gateway to stable employment, educational, and other opportunities.
