This Week At The Ninth: Housing Discrimination And Group Boycotts

• Jurisdiction: United States,Federal
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• Author: Diana Li Kim and Alexandra Avvocato
• Published date: 04 April 2023

This week, the Court addresses the constitutionality of a law protecting housing access for people with criminal histories, and the elements of a per se unlawful group boycott under the Sherman Antitrust Act.

CHONG YIM ET AL. v. CITY OF SEATTLE

The Court holds that an ordinance prohibiting landlords from inquiring about potential tenants' criminal history or acting adversely to a tenant based on that history violates landlords' free speech rights'but does not violate landlords' substantive due process rights.

The panel: Judges Wardlaw, Gould, and Bennett, with Judge Wardlaw writing the opinion, Judge Wardlaw concurring, Judge Bennett concurring in part, and Judge Gould concurring in part and dissenting in part.

Key highlight: "[A] complete ban on any discussion of criminal history between the landlords and prospective tenants . . . is not in proportion to the interest served by the Ordinance in reducing racial injustice and reducing barriers to housing. Other cities have enacted similar ordinances to achieve the same goals of reducing barriers to housing and racial discrimination as Seattle. While we do not address the constitutionality of any of these ordinances, none of them forecloses all inquiry into criminal history by landlords, as does Seattle's blanket ban on any criminal history inquiry. . . . Because a number of other jurisdictions have adopted legislation that would appear to meet Seattle's housing goals, but is significantly less burdensome on speech, we conclude that the inquiry provision at issue here is not narrowly tailored, and thus fails intermediate scrutiny."

Background: Approximately 90% of private landlords conduct criminal background checks on prospective tenants, and nearly half of private landlords in the City of Seattle say they would reject an applicant with a criminal history. Formerly incarcerated individuals are thus nearly ten times as likely to experience homelessness or housing insecurity. And those individuals are more likely to recidivate if they do not have access to housing. These consequences disproportionately impact people of color, who are more likely to have a criminal history in light of discriminatory law enforcement practices. "The correlation between race and criminal history can result in both unintentional and intentional discrimination on the part of landlords who take account of criminal history."

In an effort to combat this problem, Seattle enacted the Fair Chance Housing Ordinance. It stated that the Ordinance served two purposes: "(1) "address[ing] barriers to housing faced by people with prior records; and (2) lessening the use of criminal history as a proxy to...