Professor Heather Abraham’s new Article, Sheltering Discrimination: Fourth Amendment Challenges to Voucher Inspections, embodies the sort of practical, important work that often comes out of the clinical trenches. The Article focuses on what Professor Abraham describes as a second-generation effort by landlords to avoid renting to low-income tenants whose rent is partly covered by a housing voucher. As the Article notes, landlords in recent years have had some success arguing that laws prohibiting source-of-income (SOI) discrimination violate their privacy rights when such laws are combined with the inspection regimes that accompany vouchers. Through careful doctrinal analysis, Professor Abraham convincingly pushes back on this Fourth Amendment claim while also suggesting reasons other tenant-side arguments are likely to fail.
What stands out about the Article is how forward-looking it is. In recent years, SOI laws have proliferated such that Professor Abraham reports that “at least 24 states and 150 localities have banned SOI discrimination,” which protects “approximately 60% of all Housing Choice Voucher (HCV) voucher holders nationwide.” (P. 5.) In areas without SOI laws, landlords are free to openly state that they will not accept vouchers. But in areas with SOI laws, landlords have had to be creative. One emerging argument is that because of the inspection regime built into voucher programs—typically involving a pre-tenancy inspection and the possibility of subsequent inspections of both the premise and related written and electronic documents—SOI laws are unconstitutional. This Fourth Amendment-based challenge is gaining traction; a few courts have bought this privacy argument and have sided with landlords on their facial challenges to SOI laws. Sheltering Discrimination offers practitioners a roadmap for responding to such claims.
The idea that SOI laws violate the privacy rights of landlords seems straightforward. From the perspective of landlords, SOI laws mean landlords cannot discriminate against voucher holders, as voucher holders (there are other ways they skirt such laws), which means they are forced into a scheme that involves inspections without their consent. The bulk of the Article is dedicated to a careful and critical doctrinal analysis of the claims made by landlords. At the end of the Article, Professor Abraham shows the limitations of one initial reaction (the one this reviewer had), that such inspections could just be imposed on landlords as a condition of being in the business of renting property.
Blending academics and practice, the Article offers what amounts to a roadmap of the arguments tenant advocates should raise in response to privacy-based facial challenges to SOI laws. As Professor Abraham highlights, many of the challenges should fail because the claims are being made prior to landlords experiencing actual injury. SOI laws are not facially unconstitutional, the Article argues, because the inspection regime associated with voucher programs is separate and apart from SOI laws. This point risks being a bit too technical, relying upon the fact that SOI laws by themselves do not require inspections, instead such requirements are part of the voucher programs. One could push back by observing that in practice, SOI laws and voucher programs work in tandem and do so by design—after all, SOI laws are passed to get landlords to accept vouchers—but the sort of clever line drawing behind Professor Abraham’s attack on facial challenges is exactly what good lawyers (and good academics, for that matter) should do. Not all readers will be convinced as a policy matter, but it is a smart argument that walks a careful doctrinal line. The Article’s other defenses of SOI laws in the face of Fourth Amendment challenges emphasize the difference between administrative searches and other searches, as well as the ways tweaks in tenancy contracts could protect SOI laws from being struck down.
What is great about this article is how it manages to show the importance of SOI laws even as it breaks new ground in a sub-field (low-income housing) at risk of saturation. Academic work often is reactive and suffers from a terrible time lag. Though there have been a few successful challenges to SOI laws, as well as troubling moves by conservative states to block local SOI laws, these are still likely the early days when it comes to landlord attempts to use the Fourth Amendment to invalidate SOI laws. Attacking SOI discrimination is crucial in the pursuit of fair housing because otherwise many tenants, including low-income minority households, will find themselves effectively blocked from accessing important segments of the rental market. Moreover, the nation’s reliance upon housing vouchers instead of government-owned units depends upon a functioning inspection regime. The stakes are high. If landlords succeed in their Fourth Amendment challenges, landlords will be able to confine voucher holders to the worst units in the poorest neighborhoods. Sheltering Discrimination offers tenant advocates the doctrinal tools to push back against this possibility while also offering poverty law and housing law scholars a rich understanding of the next wave of landlord attacks on voucher programs and on low-income tenants.
