A key portion of a Seattle law meant to guard against housing discrimination is unconstitutional, the 9th U.S. Circuit Court of Appeals ruled Tuesday, but it upheld other parts of the law.
The lawsuit took aim at Seattle’s “Fair Chance Housing” ordinance, passed in 2017, which barred most landlords from asking prospective tenants about “any arrest record, conviction record or criminal history” or refusing to rent to tenants because of that history.
The law was meant to help people with criminal records access housing and to protect against policies that can disproportionately harm renters of color because of disparities in the legal system. It included several exemptions, including allowing landlords to refuse a tenant based on sex offender status.
Several landlords and a trade group sued the city in 2018, arguing the law violated their free-speech and due-process rights.
The 9th Circuit issued a mixed decision on those claims Tuesday.
The court found the prohibition against asking about criminal history overly broad and unconstitutional. However, the three-judge panel upheld the prohibition on taking “adverse action” against a tenant, like refusing to rent to them based on their record.
Judge Kim McLane Wardlaw wrote that “there is no dispute” about the problem the city was trying to address, “a crisis of homelessness among the formerly incarcerated and landlords’ use of criminal history as a proxy for race.”
But “a complete ban on any discussion of criminal history between the landlords and prospective tenants” was disproportionate to the city’s interest in reducing barriers to housing, Wardlaw wrote.
The decision sends the case back to a lower court to determine whether different parts of the law can be severed from each other.
In their initial lawsuit, landlords argued the law violated their free-speech rights by preventing them from “accessing and sharing truthful information” and violated their due-process rights by limiting their ability to exclude tenants from their property.
In 2021, a U.S. District Court judge disagreed and upheld the law, finding that it did not “burden substantially more speech than [was] necessary” to achieve the city’s housing goals. The Pacific Legal Foundation, a conservative group representing the landlords, appealed the decision.
The latest ruling opens the door to a narrower version of the housing law, in which landlords could look into a prospective tenant’s criminal record but would still not be able to use that information to refuse to rent to them, according to both supporters and opponents of the ordinance.
Landlords believe the decision was “still a win” for property owners who want information about potential tenants, said Ethan Blevins, an attorney representing the property owners. “It’s helpful for landlords to be aware of a situation.”
A single landlord, for example, “might not go over to the unit by herself if she knows the tenant has a serious violent felony,” Blevins said.
But supporters say the city should continue to guard against discrimination.
“The court recognized it’s very difficult to prohibit adverse action if the information is available,” said Nick Straley, litigation director at Columbia Legal Services, which advocated for the law. “It’s also important that some of this information not be available at all.”
“We believe the city will be able to alter its ordinance to comply” with the ruling, Straley said. “We look forward to working with the city to ensure people with criminal records continue to be protected.”
The ruling likely means landlords can immediately ask about prospective tenants’ criminal records as long as they don’t use that information to take “adverse action” against the tenant, Straley said. But the decision “didn’t explain [whether] the landlord is entitled to all the information, some of the information, whether the information can be limited in some way. Those are all open questions,” Straley said.
It’s too soon to know how the city could change the ordinance or whether either side will appeal. Mayor Bruce Harrell did not return a request for comment Tuesday. City Attorney Ann Davison said the city “is considering its next options, which might include seeking review by the full 9th Circuit or the U.S. Supreme Court.”
Councilmember Lisa Herbold, who sponsored the ordinance, said in a statement the city “may or may not” need to pass a new ordinance, depending on next steps at the lower court.
“This decision may leave the City of Seattle to explore how to best ensure that information seen by landlords is not used to exclude tenants,” Herbold said. The city aims to “ensure that no renter is unfairly rejected because of a criminal record, despite having served their time, or for others, never convicted in the first place,” she said.
The 9th Circuit decision cited a handful of similar but narrower laws in other cities. Some require landlords to screen tenants without looking at their criminal record, then allow a limited background check later in the process. Others allow landlords to consider only certain types of crimes or only offenses within a certain time frame, such as the last seven years.
Wardlaw wrote that those laws impose a “significantly lower burden on landlords’ speech.”
This story was updated on Wednesday, March 22, to add City Attorney Ann Davison’s comment.