There are few things more heartbreaking than when a family waits for years to get a Section 8 Housing Choice Voucher (HCV) but then has to give it up when they can’t find a landlord willing to accept a voucher. This is also a shame because Section 8 programs have been working hard in recent years to make the program as landlord friendly as possible.
A growing number of cities and states across the country have responded to the difficulties HCV families have had finding places to use their voucher by enacting anti-discrimination protections, thus prohibiting refusal of tenant applicants because they intend to use a HCV voucher. Several studies of the impact of enacting these protections suggests that voucher holders have an easier time using their vouchers in jurisdictions with these protections.
For years fair housing attorneys in Minnesota believed that a provision of the Minnesota Human Rights Act outlawing discrimination on the basis of “ a person’s status as the recipient of public assistance” provided this protection for HCV households. However in 2010, the Minnesota Court of Appeals held in the Edwards case that this language did not extend to the Section 8 HCV program, because that program was designed to be voluntary by landlords. The Court distinguished the language in the Minnesota law from a Massachusetts law which the court acknowledged allowed for this protection to be added to the Section 8 program. In 2017, the Minneapolis City Council drafted an amendment to its Human Rights ordinance, modeled on the Massachusetts law (in which an HJC attorney was instrumental). The Council adopted the proposal which contained a hardship exception for landlords and which was also accompanied by a “landlord mitigation fund,” designed to reimburse landlords for out of pocket losses stemming from section 8 voucher tenancies.
In the Fletcher case, a groups of landlords sued the City over the ordinance. HJC filed an amicus brief on behalf of the ordinance. The district court issued a decision that surprised many observers. Essentially the Court determined that the City could have enacted this measure as a traditional land use regulation but by putting it in an anti-discrimination ordinance the new provision could only regulate discrimination in the form of animus against particular persons. Because the ordinance in effect outlawed refusal to participate in a government program, which the court did not consider to be discrimination, the new provision was deemed invalid.
The City has appealed that decision to the Minnesota Court of Appeals and HJC has again filed an amicus brief (in partnership with a couple national organizations) in support of the City’s position. HJC’s main argument is that the district court’s conclusion that the Human Rights Ordinance can only govern conduct based on discriminatory animus overlooks a large body of caselaw from across the country which includes within civil rights protections both discriminatory animus and actions which are not intentionally discriminatory but which cause a disparate impact on protected classes.
A decision is expected the spring/summer of 2019. A number of metro local jurisdictions are watching this case closely, with an intent to enact similar protections in the event the Court ultimately upholds the Minneapolis ordinance.