Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 1 of 28 1 THE HONORABLE JOHN C. COUGHENOUR 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 12 13 14 15 16 CHONG and MARILYN YIM, KELLY LYLES, EILEEN, LLC, and RENTAL HOUSING ASSOCIATION OF WASHINGTON Plaintiffs, v. 17 THE CITY OF SEATTLE, a Washington Municipal corporation, 18 Defendant. Case No. 2:18-cv-736-JCC BRIEF OF AMICI CURIAE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY AND ACLU OF WASHINGTON IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 19 20 21 22 23 24 25 26 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 2 of 28 1 TABLE OF CONTENTS 2 Page 3 I. Introduction ....................................................................................................................1 4 II. Identity and Interest of Amici Curiae ............................................................................2 5 III. Background ....................................................................................................................2 6 7 8 9 10 11 IV. Argument .......................................................................................................................2 A. Screening Tenants Based on Criminal History, Though Facially Neutral, Disparately Impacts Communities of Color .............................................2 B. This Practice of Screening Tenants Based on Criminal History Must Be Viewed in the Context of the History of Discrimination in Housing, Nationally and Locally............................................................................7 C. Facially Neutral Practices Sometimes Mask Covert Discrimination or May Cause Unintentional Discrimination ............................................................12 12 D. The Justifications Offered for this Particular Practice Are Not Supported by the Evidence and Instead May Mask Covert Discrimination or May Result in Unintended Discrimination ...................................................................16 13 E. 14 Seattle’s Fair Chance Housing Act Eliminates an Arbitrary, Artificial, and Unnecessary Practice that, Left Unchecked, Would Keep in Place and Perpetuate Racially Disparate Outcomes ......................................................20 15 V. Conclusion ...................................................................................................................21 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - i RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 3 of 28 1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Cases 5 Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir. 2016), cert. denied, 137 S. Ct. 295 (2016) .......................... 12, 13 6 Buchanan v. Warley, 245 U.S. 60 (1917) ........................................................................................................... 9 7 Castaneda v. Olsher, 41 Cal. 4th 1205 (2007).................................................................................................. 19 8 9 Corrigan v. Buckley, 271 U.S. 323 (1926) ......................................................................................................... 9 10 Dore v. Cunningham, 376 So. 2d 360 (La. 1979) .............................................................................................. 19 11 12 Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) ......................................................................................................... 8 13 Gaston Cty. v. United States, 395 U.S. 285 (1969) ....................................................................................................... 13 14 Griffin v. West RS, Inc., 984 P.2d 1070 (Wash. Ct. App. 1999), rev’d on other grounds, 18 P.3d 558 (2001) ... 19 15 16 Griffin v. West RS, Inc., 18 P.3d 558 (2001) ......................................................................................................... 19 17 Griggs v. Duke Power Co., 410 U.S. 424 (1971) ................................................................................................... 1, 13 18 19 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) ....................................................................................................... 16 20 Shelley v. Kraemer, 334 U.S. 1 (1948) ........................................................................................................... 10 21 Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 22 135 S. Ct. 2507 (2015) ................................................................................... 1, 13, 16, 17 23 United States v. City of Black Jack, Mo., 508 F.2d 1179 (8th Cir. 1974) ........................................................................................ 13 24 25 Constitutional Provisions and Statutes 26 42 U.S.C. § 3604(c) (2012).................................................................................................... 11 27 Fair Chance Housing Ordinance, City of Seattle, Ord. 125393, § 2 (2017) .......................... 20 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - ii RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 4 of 28 1 2 3 4 5 Fair Housing Act, Pub. L. No. 90-284, Title VIII of the Civil Rights Act of 1968, 82 Stat. 81 (1968) ........................................................................................................... 11 Preamble, City of Seattle, Ord. 125393 (2017), https://seattle.legistar.com/View. ashx?M=F&ID=5387389&GUID=6AA5DDAE-8BAE-4444-8C1762C2B3533CA3 ..................................................................................................... 3, 8, 20 Wash. Const. art. XI, § 11...................................................................................................... 15 Wash. Rev. Code § 59.18.257 (2016) .................................................................................... 19 6 7 Other Authorities 8 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) ...................................................................................................... 6 9 10 11 12 13 Amici Curiae Brief of the National League of Cities et al., Masterpiece Cake Shop, Ltd. v. Colo. Civil Rights Comm., 138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 5127318 .......................................................................................................... 16 John W. Barbrey, Measuring the Effectiveness of Crime Control Policies in Knoxville’s Public Housing, 20 J. Contemp. Crim. Just. 6 (2004) ................................ 18 Robert Bauman, Jim Crow in the Tri-Cities, 1943-1950, 96 Pac. Nw. Q. 124 (2005)........ 8, 9 14 Douglas A. Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (2009) ......................................... 4 15 Developments in the Law – Zoning, VIII. Exclusionary Zoning, 91 Harv. L. Rev. 1624 (1978) ........................................................................................ 12 16 17 18 19 20 21 22 23 24 25 26 27 28 Merf Ehman & Anna Roesti, Tenant Screening in an Era of Mass Incarceration: A Criminal Record Is No Crystal Ball, N.Y.U. J. Legis. & Pub. Pol'y Quorum 1 (2015), http://www.nyujlpp.org/wp-content/uploads/2013/03/Ehman-Reosti2015-nyujlpp-quorum-1.pdf ..................................................................................... 17, 18 Equal Rights Center, Unlocking Discrimination: A DC Area Testing Investigation About Racial Discrimination and Criminal Records Screening Policies in Housing (2016), https://equalrightscenter.org/wp-content/uploads/unlockingdiscrimination-web.pdf................................................................................................... 14 George Galster, Racial Discrimination in Housing Markets During the 1980s: A Review of the Audit Evidence, 9 J. Plan. Educ. & Res. 165 (1990) ............................ 12 Greater New Orleans Fair Housing Action Center, Locked Out: Criminal Background Checks as a Tool for Discrimination (2015), http://www.gnofairhousing.org/wp-content/uploads/2015/09/ Criminal_Background_Audit_FINAL.pdf ............................................................... 14, 15 Ian F. Haney López, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 Yale L.J. 1717 (2000) ........................................................ 21 Ian F. Haney López, Post Racial Racism: Racial Stratification and Mass BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - iii RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 5 of 28 1 Incarceration in the Age of Obama, 98 Cal. L. Rev. 1023 (2010) ........................... 4, 5, 6 2 History of Segregation in the Tri-Cities, NBC Right Now (Feb. 5, 2009), http:// www.nbcrightnow.com/story/9798449/history-of-segregation-in-the-tri-cities .............. 9 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Danielle Kaeble, Probation & Parole in the United States, U.S. Dep’t of Just. Bureau of Just. Stat. (2016), https://www.bjs.gov/content/pub/pdf/ppus16.pdf .............. 7 Helen R. Kanovsky, U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 4, 2016), https://www.hud.gov/sites/documents/ HUD_OGCGUIDAPPFHASTANDCR.PDF........................................................... 17, 18 King Cty. Dep’t of Adult and Juv. Det., Detention and Alternatives Report (Sept. 2018), https://www.kingcounty.gov/~/media/courts/detention/ documents/KC_DAR_Monthly_Breakouts_09_2018.ashx?la=en............................... 3, 4 James A. Kushner, The Fair Housing Amendments Act of 1988: The Second Generation of Fair Housing, 42 Vand. L. Rev. 1049 (1989) ......................................... 11 George Lipsitz, “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. Rev. 1746 (2012) ............................ 5, 6, 15 Glen C. Loury et al., Race, Incarceration, and American Values (2008) ........................... 6, 7 James T. Loewen, Sundown Towns and Counties: Racial Exclusion in the South, 15 S. Cultures 22 (2009)................................................................................................... 8 Daniel K. Malone, Assessing Criminal History as a Predictor of Future Housing Success for Homeless Adults with Behavioral Health Disorders, 60 Psychiatric Servs. 224 (2009) ........................................................................ 17, 18, 19 Rajeev Majumdar, Racially Restrictive Covenants in the State of Washington: A Primer for Practitioners, 30 Seattle U. L. Rev. 1095 (2007) ..................................... 10 Deborah E. McDowell et al., Introduction to The Punitive Turn: New Approaches to Race and Incarceration (Deborah E. McDowell et al., eds., 2013) ............................. 4 Henry W. McGee, Jr., Seattle's Central District, 1990—2006: Integration or Displacement?, 39 Urb. Law. 167 (2007) ................................................................. 11 Naomi Murakawa, The Origins of the Carceral Crisis: Racial Order as “Law and Order” in Postwar American Politics in Race and American Political Development (Joseph Lowndes et al. eds., 2008) .............................................. 6 Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons (2016), https://www.sentencingproject.org/wpcontent/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparityin-State-Prisons.pdf ...................................................................................................... 3, 7 Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937 (2003) ........................ 14 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - iv RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 6 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Devah Pager, et al., Sequencing Disadvantage:Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 Annals Am. Acad. 195 (2009) ........... 13, 14 Kimani Paul-Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age, 100 Va. L. Rev 893 (2014) .. 14, 15 Research Working Group, Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington’s Criminal Justice System, 35 Seattle U.L. Rev. 623 (2012); 87 Wash. L. Rev. 1 (2012); 47 Gonzaga L. Rev. 251 (2012) ....................................................................................... 1 Richard Rothstein, The Color of Law (2017) .......................................................................... 9 Henry Ruth & Kevin Reitz, The Challenge of Crime: Rethinking Our Response (2006) ....... 6 Valerie Schneider, The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact, 93 Ind. L. J. 421 (2018) ............................................... 7, 17 Seattle & King County Public Health, Redlining Map & Racial Restrictive Covenants in Seattle – King County, WA, https://www.kingcounty.gov/depts/health/data/~/ media/depts/health/data/documents/population-maps/redlining-map-withcovenant-layer.ashx (last visited Nov. 19, 2018) ........................................................... 10 Seattle Civil Rights & Labor History Project, Segregated Seattle, https://depts.washington.edu/civilr/segregated.htm (last visited Nov. 19, 2018) ...... 9, 10 Seattle Housing Affordability & Livability Agenda, Final Advisory Committee Recommendations to Mayor Edward B. Murray and the Seattle City Council (2015) .. 20 Stacy E. Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357 (2013) ................................................................................ 15 David Thatcher, The Rise of Criminal Background Screening in Rental Housing, 33 L. & Soc. Inquiry 5 (2008) ........................................................................................ 19 Heather Ann Thompson, From Researching the Past to Reimagining the Future: Locating Carceral Crisis and the Key to Its End, in the Long Twentieth Century, in The Punitive Turn: New Approaches to Race and Incarceration (Deborah E. McDowell et al. eds., 2013) ............................................................................................. 4 U.S. Dep’t of Just., Survey of State Criminal History Information Systems, 2012 (2014) ...... 7 Loïc Wacquant, From Slavery to Mass Incarceration, Rethinking the “Race Question” in the United States in Globalization of Racism 94 (Donaldo Macedo & Panayoto Gounari eds., 2006) .......................................................................................... 5 William Wiecek, Structural Racism and the Law in America Today: An Introduction, 100 Ky. L.J. 1 (2011) ..................................................................................................... 21 Persis S. Yu & Sharon M. Dietrich, Nat’l Consumer Law Ctr., Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (2012), https://www.nclc.org/images/pdf/pr-reports/broken-recordsreport.pdf ........................................................................................................................ 14 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - v RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 7 of 28 1 I. 2 3 4 5 6 INTRODUCTION In Griggs v. Duke Power Co., 410 U.S. 424, 431 (1971), the Supreme Court recognized that Congress, in enacting Title VII of the 1964 Civil Rights Act, sought to remove “artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications.” In 7 2015, the Supreme Court explicitly endorsed the notion that the 1968 Fair Housing Act 8 incorporated this disparate impact principle, which reached governmental or private policies 9 that resulted in disparate impact harming individuals from a protected group if those policies 10 11 12 were “artificial, arbitrary, and unnecessary.” Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2524 (2015) (quoting Griggs, 410 U.S. at 431). The Seattle City Council, in enacting the Fair Chance Housing Ordinance, sought to 13 14 remove an artificial, arbitrary, and unnecessary barrier to accessing housing by preventing 15 landlords from inquiring about arrest records, criminal conviction records, or criminal history 16 in screening prospective tenants. In doing so, the Council recognized that a person’s criminal 17 history was not predictive of whether a person would be a good neighbor or tenant and that 18 19 20 21 22 the criminal justice system disproportionately arrests people of color.1 In other words, the practice of screening tenants based on criminal history was found to be “artificial, arbitrary, and unnecessary,” and the practice resulted in disparately excluding households that included individuals of certain protected groups. Regardless of whether this practice masked covert 23 24 25 26 27 28 In addition to disproportionate arrests, a report on race and Washington’s criminal justice system, published simultaneously in the flagship law reviews of Washington State’s three law schools, concluded that facially neutral policies “have a disparate impact on people of color” and “racial and ethnic bias distorts decision-making at various stages in the criminal justice system, thus contributing to disproportionalities in the criminal justice system.” Research Working Group, Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington’s Criminal Justice System, 35 Seattle U.L. Rev. 623, 629 (2012); 87 Wash. L. Rev. 1, 6 (2012); 47 Gonzaga L. Rev. 251, 256 (2012). 1 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 1 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 8 of 28 1 discrimination or unintentionally discriminated against members of a protected class, the 2 Council recognized the harm and, pursuant to its broad police powers to safeguard public 3 welfare, instituted a race-neutral measure to address this harm. 4 II. 5 IDENTITY AND INTEREST OF AMICI CURIAE The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”), is a non- 6 7 profit organization based at the Seattle University School of Law.2 A full description of the 8 Korematsu Center’s interest and identity is set forth in its motion for leave to file, Order, Dkt. 9 28 at 1, and the instant brief is filed with leave of the Court, Dkt. 37 at 3. 10 11 12 13 14 The ACLU of Washington is a statewide nonpartisan, nonprofit organization with over 80,000 members and supporters that is dedicated to the preservation of civil liberties and civil rights, including working to remedy race discrimination generally and working to reduce racial disparities in the criminal justice system, in both state and federal courts. 15 III. 16 17 18 BACKGROUND Amici adopt and incorporate by reference the factual background set forth in the City of Seattle’s Combined Opposition to Plaintiffs’ Motion for Summary Judgment and Cross Motion for Summary Judgment (“Seattle Cross MSJ”), Dkt. No. 33 at 2-7.3 19 IV. 20 A. 21 ARGUMENT Screening Tenants Based on Criminal History, Though Facially Neutral, Disparately Impacts Communities of Color. 22 Before the Fair Chance Housing Ordinance was enacted, Seattle landlords were 23 24 permitted to inquire, often through third party vendors, about a prospective tenant’s arrest 25 26 27 28 2 The Korematsu Center does not, in this Brief or otherwise, represent the official views of Seattle University. 3 Page references reflect pagination in the document. The cited pages are pages 8-13 as reflected in the ECF header. BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 2 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 9 of 28 1 records, criminal conviction records, or criminal history. This screening practice could extend 2 to any member of the applicant’s household if such persons were to reside on the property. 3 This screening practice disparately impacts certain minority groups. While Black 4 5 people make up about 13% of the general population, they represent 35% of the prison 6 population. Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic 7 Disparity in State Prisons 4 (2016), https://www.sentencingproject.org/wpcontent/ 8 uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf. 9 Similarly, Hispanics make up 17% of the general population, but represent 21% of the prison 10 11 12 13 population. Id. Racial disparities in the criminal justice system for both Washington State and King County are comparable to national statistics. In Washington, Black people make up 3.4% of 14 the state’s population but 18.4% of the incarcerated population. Preamble, City of Seattle, 15 Ord. 125393 at 2 (2017) [hereinafter Preamble], https://seattle.legistar.com/View.ashx?M= 16 F&ID=5387389&GUID=6AA5DDAE-8BAE-4444-8C17-62C2B3533CA3 (SR 589). 17 Hispanics and Latinos represent 11.2% of the state’s population but 13.2% of the incarcerated 18 population. Id. While Native Americans make up 1.3% of the state’s population, they 19 20 represent 4.7% of the incarcerated population. Id. In King County, Black people represent 21 6.8% of the population, but in September 2018, they represented 35.8% of the detention 22 population and 28.4% of the booking population. King Cty. Dep’t of Adult & Juv. Det., 23 Detention and Alternatives Report 1-2 (Sept. 2018), https://www.kingcounty.gov/~/media/ 24 courts/detention/documents/KC_DAR_Monthly_Breakouts_09_2018.ashx?la=en. Native 25 Americans in King County represent 1.1% of the population, but in September 2018 26 represented 2.4% of the detention population and 2.3% of the booking population. Id. Latino 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 3 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 10 of 28 1 and Hispanic populations are aggregated with the white population in King County detention 2 data, so incarceration and booking rates are unknown. See id. 3 These statistics are not surprising given the historical and contemporary treatment of 4 5 minorities by the criminal justice system. Black people were targeted for criminal intervention 6 and imprisonment beginning in the Reconstruction era and after passage of the Thirteenth 7 Amendment. Heather Ann Thompson, From Researching the Past to Reimagining the Future: 8 Locating Carceral Crisis and the Key to Its End, in the Long Twentieth Century, in The 9 Punitive Turn: New Approaches to Race and Incarceration 46-47 (Deborah E. McDowell et 10 11 12 13 al. eds., 2013). In the wake of the Civil War, emancipation threatened southern whites who were determined to maintain power and control over the plantation economy. Id. at 46. Accordingly, they subjected newly-freed, poor Black men to new criminal laws that punished 14 behavior such as vagrancy and loitering. Id. This had the effect of doubling the Black prison 15 population, going “from 8,056 in 1870 to 16,748 in 1880.” McDowell et al., Introduction to 16 The Punitive Turn, supra, at 6. “African Americans had clearly become a dominant fixture in 17 the nation’s penal system by the close of the nineteenth century.” Id. 18 During Reconstruction and afterwards, freed Black people were moved into penal 19 20 institutions to shore up a new form of enslavement through the convict leasing system, in 21 which incarcerated men were leased to plantations and later to large corporations in industries 22 like coal to provide a new form of enslaved labor. Ian F. Haney López, Post Racial Racism: 23 Racial Stratification and Mass Incarceration in the Age of Obama, 98 Cal. L. Rev. 1023, 24 1041-42 (2010); see generally Douglas A. Blackmon, Slavery by Another Name: The Re- 25 enslavement of Black Americans from the Civil War to World War II (2009). This system was 26 in place from 1870 until after World War II, and represented a “horrific example of 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 4 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 11 of 28 1 exploitation” that evaded the Thirteenth Amendment’s prohibition of involuntary servitude 2 because it was instituted through criminal convictions. Haney López, supra, at 1041. 3 Purposeful racial discrimination in the criminal justice system did not cease with the 4 5 end of convict leasing in the 1940s, although the role of crime took a back seat to other 6 avenues of exploiting Black labor and segregating people of color in the first half of the 7 twentieth century. From 1910 to 1960, large swaths of the southern Black population were 8 moving north to escape the racial caste system of the South. Loïc Wacquant, From Slavery to 9 Mass Incarceration, Rethinking the “Race Question” in the United States in Globalization of 10 11 12 13 Racism 94, 98-99 (Donaldo Macedo & Panayoto Gounari eds., 2006). Due in large part to restrictive covenants, Black Americans were forced to live in crowded, underserved, sectioned-off corners of northern cities, areas that came to be known as “urban ghettos” and 14 that were blighted by crime, prone to clashes and rioting. Id. By the 1950s and 60s, Black 15 communities were no longer willing to live under overtly discriminatory and separate but 16 unequal policy, and thus began the civil rights movement for equal treatment under the law. 17 The civil rights movement often required activists and people of color to break the very laws 18 that oppressed them. Haney López, supra, at 1032. 19 20 While the racialization of crime in the nineteenth century began largely as a southern 21 response to emancipation, the racialization of crime in the twentieth century began as a 22 national response, or “backlash,” to the civil rights movement. Id. at 1031-32. “[I]t was not 23 that the United States had a crime problem in the 1960s that somehow became racialized, but 24 rather, the nation had a racial problem that deliberately became criminalized.” George Lipsitz, 25 “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass 26 Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. Rev. 1746, 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 5 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 12 of 28 1 1781 (2012) (citing Naomi Murakawa, The Origins of the Carceral Crisis: Racial Order as 2 “Law and Order” in Postwar American Politics in Race and American Political Development 3 234, 236 (Joseph Lowndes et al. eds., 2008)). Law-and-order policy and rhetoric proved 4 5 6 effective in dampening the equalizing effects of civil rights legislation. In part to counteract civil rights efforts, Congress passed legislation that led to the “war on crime” and eventually 7 to mass incarceration during the same time that they were passing anti-discrimination 8 legislation. Haney López, supra, at 1032. In fact, in 1968, the same year Congress passed the 9 Fair Housing Act, it also passed the Omnibus Crime Control and Safe Streets Act, increasing 10 11 12 13 the number of prosecutable crimes, expanding sentencing, and defining new terms of “limited citizenship and social membership for offenders and ex-offenders.” Lipsitz, supra, at 1781-82. From the late 1960s through the 1970s with the brief but significant rise in violent crime rates, 14 and into the 1980s and 90s with the war on drugs, politicians and government actors 15 capitalized on the symbolic representation of the Black offender and “super predator” to push 16 a new form of racial stratification and segregation: mass incarceration. Michelle Alexander, 17 The New Jim Crow: Mass Incarceration in the Age of Colorblindness 44-58 (2012). 18 In short order, numerous local, state, and federal legislative reforms and law 19 20 enforcement practices such as three-strikes laws, federal drug enforcement, and stop-and-frisk, 21 worked to amass confinement and conviction of millions of people, disproportionately people 22 of color. Id. at 185-189. “[O]ver a one hundred year period, 1880 to 1980, the nation added a 23 total of 285,000 inmates to its prison systems. During just the ensuing twenty years, 1980 to 24 2000, the nation added about 1.1 million inmates.” Henry Ruth & Kevin Reitz, The Challenge 25 of Crime: Rethinking Our Response 283 (2006). While three out of 200 young white people 26 were incarcerated in 2000, one out of nine young Black people were incarcerated. Glen C. 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 6 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 13 of 28 1 Loury et al., Race, Incarceration, and American Values 23 (2008). In twelve states, more than 2 half of the prison population is Black. Nellis, supra, at 3. In Washington, Black people are 3 incarcerated at 5.7 times the rate of white people. Id. at 17. 4 5 Today, there are an estimated 100 million adults in the United States, about one-third 6 of the adult population, with a criminal record. Valerie Schneider, The Prison to 7 Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact, 93 Ind. L. J. 8 421, 423 (2018) (citing U.S. Dep’t of Just., Survey of State Criminal History Information 9 Systems 2012, at 3 (2014)). At the end of 2016, there were more than 4.5 million individuals 10 11 12 13 in the United States under community correctional supervision, and 100,000 under supervision in Washington. Danielle Kaeble, Probation & Parole in the United States, U.S. Dep’t of Just. Bureau of Just. Stat. 1, 12 (2016), https://www.bjs.gov/content/pub/pdf/ 14 ppus16.pdf. Given the racial disparities of the criminal justice system, these numbers mean 15 that a large and increasing number of people, disproportionately people of color, are living in 16 the community with a criminal record. For those people, criminal record screening practices 17 inevitably have a disparate impact, regardless of discriminatory intent. 18 19 20 21 B. This Practice of Screening Tenants Based on Criminal History Must Be Viewed in the Context of the History of Discrimination in Housing, Nationally and Locally. Racial discrimination in housing has been carried out in the United States during much 22 of our nation’s history through government action such as exclusionary zoning, public 23 housing policies, and redlining, as well as through private action such as the use of racially 24 restrictive covenants, steering, and the practice of screening tenants based on criminal history. 25 Because more obvious and recognizable forms of discrimination have become less common, 26 subtle forms of discrimination have come to plague those seeking housing. Consistent with 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 7 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 14 of 28 1 the legal standard that its regulatory actions can be legally justified if informed by “history, 2 consensus, and common sense,”4 the Seattle City Council enacted the Fair Chance Housing 3 Ordinance to address some of the practices that produced racially disparate outcomes. See 4 5 Preamble, at 1-5 (SR 588-92). Housing discrimination became a tool of segregation starting in the post- 6 7 Reconstruction era, as state actors and white society took steps to maintain social stratification 8 based on race. One mechanism that involved both government and private actors used the 9 threat of violence to keep people of color from residing in certain towns altogether. 10 11 12 13 “[S]undown towns,” which began to spring up across America in the early twentieth century, intentionally “drove out their black populations or took steps to forbid African Americans from living in them.” James T. Loewen, Sundown Towns and Counties: Racial Exclusion in 14 the South, 15 S. Cultures 22, 23 (2009). They were named for the ominous signs posted 15 throughout the towns which contained racial slur-laced threats, such as “N[*****] don’t let 16 the sun set on you here.” Id. at 39 (alteration, asterisks substituted). 17 18 19 20 While we tend to associate such blatant racism with the South, “sundown towns were rare in most of Dixie,” and are instead an example of the often overlooked yet widespread racial discrimination in the northern United States. Id. In Illinois alone, “about 500 [ ] 21 communities—two-thirds of all incorporated municipalities larger than 1,000—were sundown 22 towns.” Id. at 23. Washington was not immune from this practice. In Washington’s Tri-Cities, 23 “Pasco was the only one of the three cities that allowed black residents” in the 1940s. Robert 24 25 26 27 28 Commercial speech restriction need not “produce empirical data to support its conclusion that a speech restriction is necessary. Instead, it may rely on ‘history, consensus, and “simple common sense.”’” Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (citation omitted). 4 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 8 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 15 of 28 1 Bauman, Jim Crow in the Tri-Cities, 1943-1950, 96 Pac. Nw. Q. 124, 126 (2005). Kennewick, 2 in contrast, “was hostile to the mere presence of African Americans.” Id. A sign on the bridge 3 between Pasco and Kennewick “said something to the effect that blacks were prohibited in 4 5 6 7 Kennewick after sundown.” History of Segregation in the Tri-Cities, NBC Right Now (Feb. 5, 2009), http://www.nbcrightnow.com/story/9798449/history-of-segregation-in-the-tri-cities. During the same period, in the first decades of the twentieth century, local 8 governments adopted racial zoning ordinances that prevented people of color from living in 9 certain neighborhoods based on the principle that it was necessary to prevent African 10 11 12 13 Americans from getting too “close to the company of white people.” Richard Rothstein, The Color of Law 44 (2017). Once racial zoning practices consigned Black people to living in certain neighborhoods in urban centers, businesses that were typically associated with 14 degradation and depravity—like pollution-causing industrial sites, “taverns, liquor stores, 15 night clubs, and houses of prostitution”—were permitted to open in Black neighborhoods but 16 would be considered zoning violations if they were to open in white neighborhoods. Id. at 50. 17 After this practice of explicit racial zoning was found to be unconstitutional in 18 Buchanan v. Warley, 245 U.S. 60 (1917), those seeking to maintain racial segregation did so 19 20 through other means, including through racially restrictive covenants. This method of racial 21 segregation received the blessing of the Supreme Court when it reasoned that the Fifth, 22 Thirteenth, and Fourteenth Amendments did not “[prohibit] private individuals from entering 23 into contracts respecting the control and disposition of their own property.” Corrigan v. 24 Buckley, 271 U.S. 323, 330 (1926). From the 1920s until the period immediately following 25 World War II, communities across the country, including Seattle neighborhoods, were rife 26 with racially restrictive covenants. See Seattle Civil Rights & Labor History Project, 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 9 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 16 of 28 1 Segregated Seattle, https://depts.washington.edu/civilr/segregated.htm (last visited Nov. 19, 2 2018). 3 The Supreme Court did not prohibit state enforcement of racially restrictive covenants 4 5 until 1948. Shelley v. Kraemer, 334 U.S. 1, 20–21 (1948). Although private individuals wrote 6 the racially restrictive covenants into contracts for sale and deeds, the state had a direct role in 7 enforcing these covenants. The Court acknowledged this in Shelley, holding that these were 8 “cases in which the States have made available to such individuals the full coercive power of 9 government to deny to petitioners, on the grounds of race or color, the enjoyment of property 10 11 12 13 14 rights.” Id. at 19. Notably, though, the Court left open the option of private citizens voluntarily adhering to such covenants. Id. at 13. As a result, these covenants persisted and can still be found in deeds to land throughout Seattle. See Segregated Seattle, supra. In the 1930s, the federal government continued to perpetuate housing discrimination 15 through the practice of redlining. The Federal Housing Administration was created for the 16 purpose of “[advising] developers on what factors to use to determine whether a neighborhood 17 would receive financing.” Rajeev Majumdar, Racially Restrictive Covenants in the State of 18 Washington: A Primer for Practitioners, 30 Seattle U. L. Rev. 1095, 1101 (2007). In making 19 20 21 these assessments, the Federal Housing Administration assigned integrated neighborhoods “diminished values.” Id. at 1102. The government and banks worked together to draw literal 22 maps of where Black people would be able to secure mortgages to purchase homes, drawing 23 red lines around Black neighborhoods. See, e.g., Seattle & King County Public Health, 24 Redlining Map & Racial Restrictive Covenants in Seattle – King County, WA, https://www. 25 kingcounty.gov/depts/health/data/~/media/depts/health/data/documents/population-maps/ 26 redlining-map-with-covenant-layer.ashx (last visited Nov. 19, 2018). 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 10 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 17 of 28 1 2 3 4 5 Redlining was prevalent in Seattle during this time. A 1975 report by the Central Seattle Community Council Federation showed that in Seattle’s Central District, “[banks] would not loan to Central Area African Americans, and if they did, they charged more than they charged Euro Americans,” a surcharge known as the “Ghetto Tax.” Henry W. McGee, 6 Jr., Seattle's Central District, 1990—2006: Integration or Displacement? 39 Urb. Law. 167, 7 211 (2007). The practice of redlining resulted in extreme de facto segregation across Seattle 8 with African Americans confined to proscribed areas of the city south of the Montlake Cut. 9 See id. at 167. In response to pressure from the Black community, the State of Washington 10 11 12 13 attempted to address the issue in 1977 by passing the Mortgage Disclosure Act and the Fairness in Lending Act. See id. at 220. Though not successful in remedying the cascading effects of years of redlining, the State’s response in passing such prohibitory legislation 14 signaled the State’s recognition of its responsibility for the outcomes that originated from 15 redlining. Id. 16 17 18 19 20 21 Congress passed the Fair Housing Act in 1968 with the express purpose of prohibiting discrimination in the sale or rental of housing. Fair Housing Act, Pub. L. No. 90-284, Title VIII of the Civil Rights Act of 1968, 82 Stat. 81 (1968) (FHA). Although some of the prohibited practices, such as notices, statements, or advertisements “with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race,” 22 42 U.S.C. § 3604(c) (2012), were relatively easy to police, other practices proved difficult to 23 identify and address. “Steering” became a common form of housing discrimination in the 24 1970s and 1980s. Realtors and landlords would show prospective homebuyers or tenants 25 “housing located only in areas traditionally inhabited by members of the prospect's race.” 26 James A. Kushner, The Fair Housing Amendments Act of 1988: The Second Generation of 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 11 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 18 of 28 1 Fair Housing, 42 Vand. L. Rev. 1049, 1059 (1989). Fair housing audits in the 1980s found 2 that realtors and landlords routinely told about, invited to inspect, and actually showed fewer 3 apartments to Black auditors than to their white counterparts, George Galster, Racial 4 5 Discrimination in Housing Markets During the 1980s: A Review of the Audit Evidence, 9 J. 6 Plan. Educ. & Res. 165, 170 (1990), effectively perpetuating segregation through private and 7 less obvious means. 8 9 10 11 12 13 Exclusionary zoning ordinances also became more popular after passage of the FHA as a “race-neutral” way to maintain segregation. Cf. Developments in the Law – Zoning, VIII. Exclusionary Zoning, 91 Harv. L. Rev. 1624, 1627-28 (1978) (describing the use of exclusionary zoning and its disparate racial impact, noting that “[e]conomic-racial exclusion may well be called the racism of the seventies”). Realizing that exclusionary zoning has 14 racially discriminatory effects, this Circuit recently found that such zoning practices may be 15 unconstitutional or may violate the FHA. In Ave. 6E Invs., LLC v. City of Yuma, Ariz., city 16 officials in Yuma, Arizona, denied developers’ request to re-zone an area for “higher-density, 17 moderately priced housing” in response to racially-tinged outcry from the city’s residents. 818 18 19 20 F.3d 493, 499-501 (9th Cir. 2016), cert. denied, 137 S. Ct. 295 (2016). The court held that the developer’s disparate treatment and disparate impact claims could proceed, determining that 21 exclusionary zoning practices that result in segregation, whether as a result of conscious or 22 unconscious bias, can violate the FHA. Id. at 509, 513. 23 24 25 26 C. Facially Neutral Practices Sometimes Mask Covert Discrimination or May Cause Unintentional Discrimination. Although discrimination today is less likely to be overt, practices that are neutral on their face can serve to conceal both covert and unintended forms of discrimination. 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 12 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 19 of 28 1 Particularly where there is a long history of discrimination, courts have recognized that 2 practices or policies that are facially neutral can mask covert discrimination. See, e.g., Tex. 3 4 5 6 Dep’t of Hous., 135 S. Ct. at 2522 (recounting the history of housing discrimination and segregation and noting that the FHA “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment”); Griggs, 401 7 U.S. at 432 (relating employer’s history of overt employment discrimination and finding that 8 “good intent or lack of discriminatory intent does not redeem employment procedures or 9 testing mechanisms that operate as ‘built-in headwinds’ for minority groups”); Gaston Cty. v. 10 11 12 13 14 United States, 395 U.S. 285, 297 (1969) (finding “impartial” use of a facially neutral literacy test for voting would perpetuate racial inequalities resulting from historically segregated education system). Facially neutral practices might also result in unintended disparate outcomes for 15 communities of color. See Ave. 6E Invs. LLC, 818 F.3d at 503 (recognizing that barriers to 16 housing “can occur through unthinking, even if not malignant, policies” that “‘can be as 17 disastrous and unfair to private rights and the public interest as the perversity of a willful 18 scheme’” (quoting United States v. City of Black Jack, Mo., 508 F.2d 1179, 1185 (8th Cir. 19 20 1974))). The pervasiveness of such subtle discrimination through criminal record screening is 21 apparent in the research. Even when controlling for factors such as age, education, physical 22 appearance, and criminal background information, Black people are more likely than white 23 people to be screened out of opportunities due to having a criminal record. Studies of hiring 24 practices have concluded that the negative effect of a criminal record was “substantially 25 larger” for Black job applicants than for white job applicants. Devah Pager, et al., Sequencing 26 Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 13 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 20 of 28 1 Records, 623 Annals Am. Acad. 195, 199 (2009) (describing results of study conducted in 2 2004 in New York City); Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 3 957-59 (2003) (describing results of study conducted in 2001 in Milwaukee). More limited 4 5 studies testing the impact of a criminal record on tenants searching for housing came to 6 similar conclusions. See Equal Rights Center, Unlocking Discrimination: A DC Area Testing 7 Investigation About Racial Discrimination and Criminal Records Screening Policies in 8 Housing 6 (2016), https://equalrightscenter.org/wp-content/uploads/unlocking-discrimination- 9 web.pdf (finding Black women with a criminal record searching for housing in Washington 10 11 12 13 D.C. area were treated differently forty-seven percent of the time); Greater New Orleans Fair Housing Action Center, Locked Out: Criminal Background Checks as a Tool for Discrimination 17-18 (2015), http://www.gnofairhousing.org/wpcontent/uploads/2015/09/ 14 Criminal_Background_Audit_FINAL.pdf (finding differential treatment toward Black testers 15 posing as prospective tenants with a criminal record fifty percent of the time). 16 17 18 19 20 The problem is compounded by the substantial inaccuracies present in criminal records databases, including a high rate of false positives due to incorrect identification, misleading information, reporting of sealed records and expungements, and missing disposition information. See Persis S. Yu & Sharon M. Dietrich, Nat’l Consumer Law Ctr., Broken 21 Records: How Errors by Criminal Background Checking Companies Harm Workers and 22 Businesses 3, 15-29 (2012), https://www.nclc.org/images/pdf/pr-reports/broken-records- 23 report.pdf. Because of the comparatively large numbers of people of color who have had 24 contact with the criminal justice system that would show up on a routine background check, 25 even if that contact did not result in conviction or is not accurate, people of color are 26 disproportionately impacted by use of criminal records. See Kimani Paul-Emile, Beyond Title 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 14 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 21 of 28 1 VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information 2 Age, 100 Va. L. Rev 893, 907-10 (2014). Whether the resulting discrimination is intentional 3 but covert5 or unintended, people of color suffer from the disparate results. 4 Though disparate impact theories of liability present one avenue to address such 5 6 outcomes, the relief comes after the damage has been done, and the victims of discrimination 7 are rarely able attain redress because of the difficulty of bringing and proving such claims. See 8 Stacy E. Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of 9 Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 10 11 12 13 392-94 (2013) (conducting a qualitative analysis of disparate impact claims under the FHA and finding less than twenty percent of the claims successful). Furthermore, where the disparate impact results from structures and institutions that have evolved as part of the 14 culture over time, individual lawsuits are unlikely to make a significant difference in the 15 problem on a societal level in a way that addresses the underlying racism. Cf. Lipsitz, supra, 16 at 1800 (“The tort model of individual injury that dominates civil rights law … largely fails to 17 address and redress the dimensions of discrimination that are structural and systemic.”). 18 19 20 Local governments have the authority under the Washington Constitution to proactively address discrimination in their communities. See Wash. Const. art. XI, § 11 (“Any 21 county, city, town or township may make and enforce within its limits all such local police, 22 sanitary and other regulations as are not in conflict with general laws.”). It is of special note 23 that the Seattle City Council, in effecting a remedy for a practice that it recognized had a 24 25 26 27 28 5 Whether by instituting a blanket ban on renting to tenants with a criminal history knowing that it will exclude many applicants of color, or by using criminal history as a reason not to rent when the applicant is Black or Latino, criminal history has the potential to provide landlords with a facially neutral way to hide discriminatory intent. See Locked Out, supra, at 17 (finding “[c]riminal background screening policies are used as tools for discrimination”). BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 15 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 22 of 28 1 racially disparate effect, chose a race-neutral method. In doing so, the Council acted well 2 within the bounds approved by the Supreme Court. Cf. Parents Involved in Cmty. Schs. v. 3 Seattle Sch. Dist. No. 1, 551 U.S. 701, 788-90 (plurality opinion) (Kennedy, J., concurring) 4 5 6 (recognizing that legislative branches of government may devise general measures to address the impact of policies and procedures on members of particular races); Tex. Dep’t of Hous., 7 135 S.Ct. at 2524 (“local housing authorities may choose to foster diversity and combat racial 8 isolation with race-neutral tools, and mere awareness of race in attempting to solve the 9 problems facing inner cities does not doom that endeavor at the outset”). Such measures are 10 11 12 13 geared toward preventing unnecessary discrimination from occurring by looking at disparate outcomes and working to address the underlying causes of the disparities. Cf. id. at 2525 (approving of local housing authorities’ race neutral efforts to address the consequences of 14 discrimination). Furthermore, local governments have often been at the forefront of providing 15 additional protections to address inequalities in their populations. See Amici Curiae Brief of 16 the National League of Cities et al., at 3-10, Masterpiece Cake Shop, Ltd. v. Colo. Civil Rights 17 Comm., 138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 5127318, at *3-10 (cataloging 18 instances of greater municipal protections or grants of rights than available under federal law). 19 20 21 22 23 Such protections are necessary to address the perpetuation of racially disparate outcomes here. D. The Justifications Offered for this Particular Practice Are Not Supported by the Evidence and Instead May Mask Covert Discrimination or May Result in Unintended Discrimination. Landlords’ use of criminal records as a purported tool for maintaining safety and 24 avoiding liability is a smoke screen for preserving the long-standing system of racial 25 discrimination in our community. Although criminal record screening practices have yet to be 26 expressly prohibited in federal anti-discrimination legislation, the U.S. Department of 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 16 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 23 of 28 1 Housing and Urban Development’s (HUD) General Counsel reaffirmed in 2016 that tenants 2 may have cognizable disparate impact claims related to criminal record screening in housing. 3 Helen R. Kanovsky, HUD, Office of General Counsel Guidance on Application of Fair 4 5 Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real 6 Estate-Related Transactions 5 (Apr. 4, 2016) [hereinafter HUD Guidance], https://www. 7 hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF) (citing to Tex. Dep’t of 8 Hous. & Cmty. Affs., 135 S. Ct. at 2525 (holding that disparate impact claims are cognizable 9 under the FHA)). Several factors indicate that by continuing to participate in criminal record 10 11 12 screening, landlords are engaging in de facto discrimination with no evidence that supports a substantial or legitimate interest in doing so. Plaintiffs argue that safety is a substantial interest that justifies the use of criminal 13 14 records to screen out high risk applicants. Pls.’ Mot. Summ. J., Dkt. 23 at 19.6 Widespread use 15 of criminal record screening based on increasingly easy access to criminal records seems to 16 reinforce the erroneous assumption that criminal records screening leads to a greater 17 likelihood of safety. Schneider, supra, at 428-29. Despite the growing and largely unregulated 18 trend of tenant criminal record screening, there is no empirical research that substantiates the 19 20 assumption that criminal screening in housing does in fact lead to safer housing conditions. 21 See Daniel K. Malone, Assessing Criminal History as a Predictor of Future Housing Success 22 for Homeless Adults with Behavioral Health Disorders, 60 Psychiatric Servs. 224, 225 (2009); 23 see also Merf Ehman & Anna Roesti, Tenant Screening in an Era of Mass Incarceration: A 24 Criminal Record Is No Crystal Ball, N.Y.U. J. Legis. & Pub. Pol'y Quorum 1, 16-17 (2015) 25 26 27 28 6 Page reference reflects pagination in the document. The cited page is page 23 as reflected in the ECF header. BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 17 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 24 of 28 1 (SR 510-11), http://www.nyujlpp.org/wp-content/uploads/2013/03/Ehman-Reosti-2015- 2 nyujlpp-quorum-1.pdf. The absence of data to support the practice indicates that landlords 3 justify screening out applicants with a criminal record on “[b]ald assertions based on 4 5 6 generalizations and stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record.” HUD Guidance, supra, at 5. Research also shows that criminal record screening practices, including blanket bans, 7 8 do not have the intended effect of reducing crime, especially violent crime. One study 9 conducted in Knoxville, Tennessee, tracked the effectiveness of a year-long residency- 10 11 12 13 applicant-screening practice that systematically denied housing to individuals with a record of sex, violent, or property crimes. John W. Barbrey, Measuring the Effectiveness of Crime Control Policies in Knoxville’s Public Housing, 20 J. Contemp. Crim. Just. 6, 15 (2004). The 14 study found that screening out applicants with a criminal record had a small correlative link to 15 decreased property crimes but had no discernable impact on violent crime, such as aggravated 16 assault and rape. Id. at 24-25. 17 18 19 20 Furthermore, having a criminal record is not indicative of tenant success,7 even among chronically homeless adults with mental illness. Malone, supra, at 227. A 2009 study of Seattle’s supportive housing environment showed that having a criminal record had no 21 statistically significant impact on whether tenants were able to maintain their housing for an 22 entire two-year period. Id. at 225. These findings run counter to common landlord beliefs that 23 housing must be free of people with criminal records to be safe for other residents. Id. at 228.8 24 25 7 26 8 27 28 Housing success for the study was defined as “maintaining continuous retention of housing for two years or, if moved out before then, going to appropriate living situations.” Malone, supra, at 225. In discussing limitations on this study, Malone points out that “generalizing the results…to other situations may not be valid.” Id. at 229. However, Malone then points out that the study results “call into question the wisdom of BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 18 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 25 of 28 1 Plaintiffs also express fear that leasing to a tenant with a criminal record will expose them to 2 liability for any harm caused by that tenant upon other tenants. Pls.’ Mot. Summ. J., Dkt. 23 at 3 4 5 5. Such fear of tort liability may be exploited by tenant screening companies that “often invoke the threat of premises liability suits in advertisements.” David Thatcher, The Rise of 6 Criminal Background Screening in Rental Housing, 33 L. & Soc. Inquiry 5, 15 (2008). While 7 in limited contexts landlords may be liable for harm caused to tenants on leased premises, the 8 plaintiffs’ suggestion that landlords have an affirmative duty in Washington to protect tenants 9 from the criminal acts of third parties is misleading. 10 11 12 13 In Washington, neither statutes nor case law place a duty on landlords to conduct tenant criminal record screenings or to protect tenants from conduct of third parties. See Wash. Rev. Code § 59.18.257 (2016); Griffin v. W. RS, Inc., 18 P.3d 558 (2001).9 As the City 14 points out, the Ordinance effectively eliminates foreseeability in this context by prohibiting 15 review of a potential tenant’s criminal history. Seattle Cross MSJ, Dkt 33 at 17. Landlords 16 simply cannot foresee what they are legally prohibited from knowing, and therefore their risk 17 18 19 20 21 22 23 24 25 26 27 28 policies attempting to predict tenancy success by the use of criminal background information,” and although “[a] link between criminal history and housing failure has been assumed…empirical evidence of the link has not been studied or reported. The fact that the study found no link should help establish the need for larger, multisite studies…about the predictive utility of criminal background information.” Id. 9 In fact, the Washington Supreme Court declined to answer when directly presented with the question of whether landlords have a duty to protect tenants from third party criminal conduct where the landlord has control over the premises and the third party conduct was reasonably foreseeable. Griffin, 18 P.3d at 562 (declining to reach issue of landlord duty of care because jury found landlord negligence was not proximate cause of injuries); but see Griffin v. W. RS, Inc., 984 P.2d 1070, 1073 (1999), rev’d on other grounds, 18 P.3d 558 (2001) (lower court finding that landlords have a special, though not absolute duty to the tenant where they assert control over the premises and the third party conduct was reasonably foreseeable). Courts in other jurisdictions have also declined to place liability on landlords for negligently screening tenants because of the impossibility of predicting unknown future criminal conduct. See e.g. Castanada v. Olsher, 41 Cal. 4th 1205, 1212, 1217 (2007) (rejecting argument that landlords have a duty to screen tenants for criminal history, in part, because it could raise liability for discrimination claims and would be “socially questionable”); Dore v. Cunningham, 376 So. 2d 360, 362 (La. 1979) (concluding that landlord’s knowledge of perpetrator’s criminal propensity and fact that he was invited onto premises by landlord created at most a remote association to injury). BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 19 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 26 of 28 1 2 3 4 5 of liability for failure to screen is virtually non-existent. E. Seattle’s Fair Chance Housing Act Eliminates an Arbitrary, Artificial, and Unnecessary Practice that, Left Unchecked, Would Keep in Place and Perpetuate Racially Disparate Outcomes. In 2014, the Seattle City Council assembled the Housing Affordability and Livability 6 Advisory Committee (HALA) which issued a report in 2015. Seattle Housing Affordability & 7 Livability Agenda, Final Advisory Committee Recommendations to Mayor Edward B. Murray 8 and the Seattle City Council (2015) (SR 18-93) [hereinafter HALA Report]. The HALA 9 Report identified many issues contributing to unstable housing in the City. One of its primary 10 11 12 13 findings was that “[persons] with a criminal record, who are disproportionately lower income and people of color, need fair access to suitable housing options,” and noted that “[studies] show that people with stable housing are more likely to successfully reintegrate into society 14 and less likely to reoffend.” HALA Report at 33 (SR 51). The HALA committee voted to 15 recommend that the City Council develop legislation to reduce barriers to housing for people 16 with criminal records. Id. at App. F-11 (SR 79). This finding and recommendation paved the 17 way for the passage of the Fair Chance Housing Ordinance in 2017 to prevent private 18 landlords from denying a rental application on the basis of an applicant having a criminal 19 20 history. City of Seattle, Ord. 125393, § 2 (2017). The preamble to the Ordinance indicates that 21 it was passed, in significant part, to address racial equity. Preamble, at 1-5 (SR 588-92) 22 (explaining that the Ordinance “aims to address the racially disproportionate impact that 23 exclusionary tenant screening practices have on our communities”). Thus, the City of Seattle 24 recognized that the Fair Chance Housing Ordinance was necessary to prevent landlords from 25 denying housing to people with criminal histories because doing so clearly disproportionately 26 affects people of color and acts as de facto racial discrimination. 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 20 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 27 of 28 1 2 3 The City’s actions in passing the Ordinance in the name of racial justice are not only justified, but are a necessary step to address the structural racism that pervades the City’s housing market. See William Wiecek, Structural Racism and the Law in America Today: An 4 5 Introduction, 100 Ky. L.J. 1, 19 (2011) (recommending proactive measures to address 6 structural racism); Ian F. Haney López, Institutional Racism: Judicial Conduct and a New 7 Theory of Racial Discrimination, 109 Yale L.J. 1717, 1844 (2000) (noting society’s 8 responsibility for remediating institutionalized racial practices). 9 10 11 12 13 14 As with racially restrictive covenants and redlining in decades past, and with issues of housing access in present times, Seattle has a responsibility to prevent unjust housing discrimination against people of color. In enacting the Fair Chance Housing Ordinance, Seattle has acted responsibly to eliminate an arbitrary, artificial, and unnecessary barrier to individuals and families seeking fair access to housing. 15 16 17 18 V. For these reasons, the Court should deny Plaintiffs’ Motion for Summary Judgment, and grant Defendant’s Cross-Motion for Summary Judgment. Dated: November 20, 2018 19 By: s/ Melissa R. Lee Melissa R. Lee, WSBA #38808 Robert S. Chang, WSBA #44083 Ronald A. Peterson Law Clinic 1112 E. Columbia St. Seattle, WA 98122 Phone: 206.398.4394 Email: leeme@seattleu.edu 20 21 22 23 Counsel for AMICI CURIAE 24 FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY 25 and 26 ACLU OF WASHINGTON 27 28 CONCLUSION BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) - 21 RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394 Case 2:18-cv-00736-JCC Document 38 Filed 11/20/18 Page 28 of 28 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on November 20, 2018, the foregoing document was electronically filed with the United States District Court’s CM/ECF system, which will send notification of such filing to all attorneys of record. 5 6 s/ Melissa R. Lee Melissa R. Lee 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEF OF THE KOREMATSU CENTER AND ACLU OF WASHINGTON AS AMICI (Case No. 2:18-cv-736-JCC) RONALD A. PETERSON LAW CLINIC 1112 E. Columbia St. Seattle, WA 98122 206.398.4394