A yearslong battle over property rights in Seattle may soon have national implications as various groups pressure the Supreme Court to analyze the constitutionality of a law banning landlords from rejecting tenants based on their criminal histories.
In 2017, the city passed the Fair Chance Housing Ordinance, prohibiting landlords from conducting criminal background checks on potential renters, from using information on criminal histories to exclude tenants, and from increasing rents and security deposits for such applicants. The sole exception in the law pertains to prospective renters who have been convicted of a sex offense as an adult, but even then, landlords must convince the Seattle Office for Civil Rights that they have a “legitimate business reason” for denial.
The following year, the Pacific Legal Foundation (PLF) sued to end that law, arguing that the “unreasonable, overbroad, and unduly burdensome” regulation ran afoul of the 14th Amendment right to due process and that its block on analyzing public records violated landlords’ free speech rights.
Judge John C. Coughenour of the U.S. District Court for the Western District of Washington disagreed. In 2021, he sided with Seattle, writing that the law was “a reasonable means of achieving the City’s objectives and does not burden substantially more speech than is necessary to achieve them.”
Earlier this year, the U.S. Court of Appeals for the 9th Circuit reversed it—in part. “We conclude that the Ordinance’s inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny,” wrote Judge Kim McLane Wardlaw. “However, we reject the landlords’ claim that the adverse action provision of the Ordinance violates their substantive due process rights.” In other words, the government cannot bar landlords from looking at public records, the court ruled, but the judges left the ban on using that information to take adverse action.
Now, several advocacy groups—from the Buckeye Institute and the Manhattan Institute to the National Apartment Association and the Consumer Data Industry Association—are calling on the high court to weigh in.
“Instead of allowing political factions to inflict legalized trespasses on each other in the service of their own social and political desires, in a tit-for-tat that deprives all sides of their freedom to choose, the traditional rule is better by far: to allow property owners to decide for themselves who may and may not enter their land and on what conditions,” wrote Timothy Sandefur of the libertarian Goldwater Institute in an amicus brief to the Court. “This is not only the more efficient means of resolving disputes over what restrictions on property use are wisest—while simultaneously respecting diverse views on that subject— but it is also the means that is deeply rooted in this nation’s history and tradition.”
The political push behind Seattle’s ordinance had good intentions: People with criminal records indeed often have a harder time finding stable housing and employment. Yet as Reason‘s Christian Britschgi noted directly after the law passed, sensible policy requires more than simply wanting the best for your constituents.
“It’s true that our current criminal justice system unnecessarily tars citizens with arrest records and criminal histories, and that those criminal histories make it more difficult to find jobs and housing,” Britschgi wrote in 2017. “But attempting to mitigate the effects of a broken criminal justice system by foisting extra costs onto landlords—who have quite understandable reasons to want to know about tenants’ criminal histories—is not the answer.”
One reason it is not the answer: The rule would backfire on many tenants—the people the law is supposed to help—as landlords compensate by having more strenuous requirements for the remaining legal rent criteria, like credit scores.
But it’s not just about a business’ bottom line. Take Chong and MariLyn Yim, a Seattle couple represented by PLF who hope the high court will hear their case. The Yims own a triplex in Seattle where they lived in one unit with their three children. To support themselves, they rented the two remaining units, using the screening process to ensure their tenants wouldn’t potentially endanger their children.
“Private rental property owners are not responsible for generalized adverse impacts of the criminal justice system, the high housing failure rates among ex-convicts, or high recidivism rates,” wrote PLF in their petition to the Supreme Court. “Seattle’s decision to place the burden of housing the most violent and dangerous ex-convicts on private owners violates due process.”