(CN) — A three-judge Ninth Circuit panel partially reversed a federal judge's decision to OK a Seattle ordinance that prohibits landlords from inquiring about the criminal history of tenants and taking adverse action based on that information.
The Rental Housing Association of Washington sued Seattle in May 2018 claiming Seattle’s Fair Chance Housing Ordinance unconstitutionally prohibits landlords from screening applicants for criminal records.
The association claimed screening housing applicants’ criminal history and checking them through a sex offender registry is important because it protects other tenants and themselves from liability. They also claimed the ordinance violates their federal and state rights of free speech and substantive due process, given that it prohibits people and organizations from “accessing and sharing truthful information about housing applicants."
In July 2021, a federal judge upheld the ordinance, finding it did not infringe on the landlords’ First Amendment rights because it regulated commercial speech, not conduct. The court also held the ordinance was constitutional as a reasonable means of achieving the city’s objectives, and that the landlords’ asserted right to rent to whoever they choose at whatever price — “subject to reasonable antidiscrimination measures” — was a not a fundamental right.
The landlords appealed to the Ninth Circuit, which on Tuesday mostly reversed the lower court and held the city’s inquiry provision encroached on the landlord’s First Amendment’s rights — though the panel agreed the city's interests of reducing barriers to housing for people with criminal records as a proxy to race discrimination were substantial.
The panel also disagreed the ordinance was narrowly drawn to achieve the city’s goals and found the inquiry provision — a complete ban on discussing criminal history between landlords and prospective tenants — was not in proportion to the interests of the ordinance in reducing racial injustice and barriers to housing.
Writing for the panel, U.S. Circuit Judge Kim McLane Wardlaw found that nearly half of all private landlords in Seattle say they would reject an applicant with a criminal history, leaving formerly incarcerated people nearly 10 times more likely than the general population to experience homelessness or housing insecurity. Meanwhile, Seattle is currently experiencing a housing crisis, and, within the U.S., people of color are more likely to be negatively impacted by criminal background checks when they are disproportionately disenfranchised on the basis of race.
“The cumulative effects of racialized discrimination in housing on homelessness are hard to measure," Wardlaw, a Bill Clinton appointee, wrote. "However, it is striking that while Seattle is just 7% Black, Seattle’s unhoused population is 25% Black.”
Even so, the panel still found that the goals of the ordinance could be met with a different approach.
“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,” Wardlaw wrote.
The panel did, however, affirm the district court’s rejection of the landlord’s claim that the adverse action provision of the ordinance violated their due process rights because they do not have a fundamental right to exclude.
U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, joined the opinion. U.S. Circuit Judge Ronald Gould, a Clinton appointee, dissented in part and would have found the inquiry provision passes muster.
“The record before us shows that Seattle’s elected officials did precisely what intermediate scrutiny asks them to do: ‘carefully calculate the costs and benefits associated with’ the inquiry provision. Seattle’s representatives compiled and considered data, studies, and public input on this issue. They talked through their reasoning. And they ultimately reached a consensus.
"The inquiry provision may or may not be ‘the single best’ solution to Seattle’s problems, but it is a reasonable, informed, and targeted attempt. That is all our precedent asks. For that and the foregoing reasons, I respectfully dissent from the decision to strike down the inquiry provision," Gould wrote.
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