Familial-Status Discrimination: A New Frontier in Fair Housing Act Litigation

abstract. A key provision in the Fair Housing Act (FHA)—the Housing for Older Persons Act (HOPA) exemption—has allowed municipalities to weaponize senior housing to discriminate against families, obstruct affordable housing, and perpetuate race and class segregation. This Note documents the nature, stakes, and origins of this pattern and advances three main prescriptive claims. First, advocates can and should work within the existing HOPA framework to hold municipalities accountable for exclusionary decisions. Second, courts should interpret the HOPA exemption to better reflect the goals of the FHA. Third, federal and state governments should make changes to fair-housing law to respond to its widespread abuse.

authors. Rubin Danberg Biggs, J.D. expected 2023, Yale Law School; Patrick Holland, J.D. 2022, Yale Law School. Special thanks to Anika Singh Lemar for providing the inspiration for this project and for her constant support throughout this entire endeavor. We are also deeply grateful to J.L. Pottenger Jr. for his thoughtful advice and critical input. Additionally, thanks to Bassam Gergi, Peter Haberlandt, and Roger Maldonado for their assistance at various stages, and to the members of the Jerome N. Frank Legal Services Organization’s Housing Clinic and the Ludwig Center for Community & Economic Development for their patient and considered feedback. We are grateful to Thomas Ritz for his insightful revisions, Daphne Peng for her attentive review, and the full Yale Law Journal editorial team. Finally, thank you to the countless advocates who tirelessly fight to make housing abundant and our communities more just.

Introduction

Like many American cities, Arlington, Texas does not have enough affordable housing.1 As of 2015, the city reported that more than 24,000 of its low-to-moderate-income renter households were significantly burdened by their rent payments, spending more than 30% of their income on housing.2 Nationally, rent-burdened households account for 46% of American renters3 and often face difficulty affording even basic necessities like food and medical care.4 So, it should have come as welcome news to Arlington’s City Council when, in 2017, a developer offered to build eighty-eight units of new affordable housing for the city’s low-income residents.5 The Council saw things differently—it refused to endorse the proposal and killed the project before it ever broke ground.6

Arlington rejected the development proposal because, a year earlier, the City Council had instituted a policy stating that it would only endorse affordable housing that was restricted to elderly residents.7 The 2017 housing proposal included housing for families, so it did not meet this requirement. At first glance, Arlington’s preference for senior housing may seem understandable. One could argue that the city only wished to serve the housing needs of its elderly population. The reality, however, is that Arlington’s decision to favor seniors was a tried-and-true strategy to obstruct developers from building housing for a group the city wished to exclude: low-income families with children. In public meetings, both officials and members of the public made it clear that its decision was motivated by prejudice.8 The result was that the dire housing needs of Arlington’s lower-income families went unmet.

These events in Arlington reflect a striking pattern that plays out in towns and cities across the country. Opposition to affordable housing often coalesces around a bare hostility toward low-income families with children. When faced with proposals to build affordable housing, municipalities demand that developers build with age restrictions or not at all. In many cases, developers choose the latter. Ultimately, municipal officials end up deploying the policy levers at their disposal to obstruct new housing and steer affordable building toward lower-income, less-resourced areas, entrenching patterns of segregation along both race- and class-based lines.9 Municipalities have long used their power to maintain residential segregation, and the type of discrimination practiced by Arlington is one of the most potent and pernicious tools they use to achieve these ends.10

Critically, exclusionary municipalities do not oppose all forms of housing for families. Local policymakers rarely raise objections to single-family homes, whose occupants are, on average, wealthier and whiter than residents of multifamily housing.11 Instead, they reserve their antifamily objections for forms of housing that tend to serve lower-income communities and communities of color. These forms of housing include subsidized developments, like the one proposed in Arlington, that are explicitly restricted to low-income renters. They also include market-rate multifamily housing developments, which are typically more affordable than comparable single-family housing.12 The precise form of discrimination that this Note describes is not merely directed at families with children, but at families who inhabit lower-cost housing. Thus, opposition to housing for families should be understood both as a proxy for and a manifestation of racial and socioeconomic bias in municipal-housing policy.

Despite its significance, legal scholars have paid little attention to municipal discrimination against children and families. Likewise, although this form of discrimination is unlawful under the Fair Housing Act (FHA),13 housing advocates have made few successful claims against municipalities on these grounds.14 While scholars have written about familial-status discrimination—the practice of discrimination against families with children—they have primarily done so in the context of private housing-market transactions.15 By contrast, there are few extended discussions of municipal familial-status discrimination in the legal literature, and none which propose the particular combination of solutions advocated in this Note.16

This void derives from a key exemption to the FHA: the Housing for Older Persons Act (HOPA).17 HOPA allows both private and public actors to construct and maintain elderly-only housing without running afoul of the FHA’s prohibition on discrimination against families with children.18 This means that building and operating an assisted living facility or a fifty-five-and-over community is not a per se violation of the FHA.

HOPA was enacted as a narrow exemption to the FHA to allow communities to provide specialized housing for seniors.19 However, in the decades since its passage, municipalities have weaponized the exemption to shield themselves from liability for obstructing affordable housing, perpetuating residential segregation, and denying housing to low-income families with children. By expressing a preference for seniors, cities and towns like Arlington appear to qualify for the HOPA exemption even when their true motivations have little to do with preserving elderly housing. While only one circuit court has addressed the issue, it largely enabled discriminatory policymaking by erecting a needlessly deferential standard for applying the HOPA exemption.20 Put simply, between poor judicial construction and underenforcement, there is a gap in the middle of the FHA through which a massive amount of discrimination is able to slip.

This Note aims to close that gap. Part I demonstrates that familial-status discrimination in municipal land-use policy is a pervasive problem contributing to the twin crises of housing affordability and residential segregation. Although this phenomenon is well-known to housing advocates, this Note’s discussion of municipal familial-status discrimination constitutes the first attempt at a cohesive account of the nature and stakes of the problem. Part I argues that municipal familial-status discrimination has three devastating consequences. First, it unlawfully and unconscionably denies safe and affordable housing to countless children. Second, it blocks the construction of badly needed affordable housing more generally. Third, it functions as a pernicious form of racial and socioeconomic discrimination that creates and perpetuates segregation.21 Additionally, Part I argues that municipal familial-status discrimination matters because local-government officials are often open and honest about their animus toward low-income children. Many instances of municipal familial-status discrimination contain elements of racial discrimination, both in the intent behind the policies and the disproportionate burden they place on Black and Brown communities. However, for reasons that Part I explains, racial-discrimination claims under the FHA can be challenging to mount. Familial-status discrimination claims can provide another powerful tool for advocates planning to bring intentional-discrimination suits in situations where these harder-to-prove claims may not be feasible. In sum, Part I asserts that municipal familial-status discrimination is a consequential phenomenon that demands urgent and sustained attention.

Parts II and III demonstrate the flaws in the few existing judicial interpretations of the HOPA exemption and present a viable roadmap for housing advocates seeking to use the FHA to combat municipal familial-status discrimination. Part II describes the doctrinal landscape of familial-status discrimination, as well as the legislative origins of the FHA’s familial-status protections and its carve-out for older persons. Further, Part II argues that existing applications of HOPA to municipal familial-status discrimination are dangerously deferential to local governments. Part III then argues that, within this broad landscape, familial-status claims are both viable and indispensable. It offers a guide for building a claim under existing doctrine and then presents an alternative framework that courts and advocates might use to interpret the HOPA exemption. The argument is that this construction best respects HOPA’s goal of preserving housing opportunities for elderly persons without diminishing the FHA as a tool for combatting discrimination. Part IV follows by proposing a series of legislative and regulatory reforms to the HOPA exemption that could make it easier for attorneys to bring familial-status discrimination cases. Part IV also offers potential legislative and regulatory solutions to municipal familial-status discrimination that do not involve amending the FHA.