A Civil Responsibility for Representation

The advent of American justice, in criminal proceedings, is often tied to the constitutional guarantee of the attorney. Our 6th Amendment promises that “in all criminal prosecutions, the accused shall enjoy the right to… have the Assistance of Counsel for his defence.” [1] This is a powerful promise our Founders codified, aiming to level the playing field for criminal defendants thereafter. In many ways, this pledge continues to represent the emphasis on individual rights in the American social contract. But when we take a step backwards, we are reminded that criminal proceedings have an often-overlooked twin: civil law. Unlike criminal proceedings where punishment is doled out by the government and its agents, justice in civil matters is exacted through financial compensation. While the 6th Amendment guarantees legal representation for criminal defendants, it does not do the same for civil matters. Nowhere are the effects of this omission more prominent than in tenant law.

The Department of Housing and Urban Development (H.U.D.) outlines legal practices for tenants and landlords. In federally subsidized housing, landlords evicting tenants need to have ‘good cause’ to legally evict tenants. In order for this to happen, Housing Authorities take on a burden to prove violations of the lease or have ‘good cause’ to arrest. [2] [3] This ‘good cause’ includes discovery of criminal activity or alcohol abuse, discovery of facts that made the tenant ineligible, and eviction history. Landlords use this lenience in the law to implement screening processes of renters’ eviction case history as justification for eviction. The content and the context of the prior eviction cases, however, is not requisite to justify eviction. [4] For example, if a tenant is named in a previous eviction case, the individual is often barred from renting in the future, even if the previous eviction case was thrown out. This practice is rarely proven to be illegal. [5]

Critics of this selective renting call it “voucher discrimination.” The issue of discrimination in this context can be traced back to the 1968 Fair Housing Act. Congress passed this act as a governmental check against discrimination. Technically, since these groups of people—those who have been involved in previous eviction cases—are not protected under anti-discrimination laws, barring them from renting is not illegal. [6] However, in the larger context of the housing crisis and the discriminatory effects that ostensibly go hand in hand with it, many argue that this “voucher discrimination” is a proxy for landlords to backdoor otherwise illegal forms of discriminatory selections.

One of the most pervasive aspects of these practices is that many discriminatory eviction cases are not brought to court because proving discrimination is a byzantine process. Until very recently, plaintiffs in discrimination cases had to explicitly prove discriminatory intent, pursuant to the Supreme Court’s 1977 ruling in Village of Arlington Heights v. Metropolitan Housing Development Corp.[7] Progress was made in 2015 in the Court’s Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.ruling which found that discrimination cases need not hinge entirely on intent, but rather can be proved with evidence of “disparate impact.” [8] Disparate impact encompasses employment practices that have an outsized effect on protected groups of citizens. In this case, evidence that housing practices in Texas disproportionately affected black inner-city neighborhoods was deemed adequate proof that discriminatory practices were in play under the Fair Housing Act.

These practices continue to plague cities because landlords do not have a stake in the wellbeing of their tenants. Granted, the rising housing prices also have an effect on landlords. To maintain market value, landlords cite economic necessity as reason to continue these practices. The question then becomes, ought our laws follow the progression of development and gentrification, or the increasingly dire needs of tenants who are forgotten by the needs of the market economy? To answer this, it is important to look at the effects of the status quo.

Eviction is one of the prominent pipelines to poverty in the American socioeconomic shark tank. [9] The remedy to this solution to provide representation for civil defendants in tenant discrimination cases. Lawyers are more able to consider the specific circumstances of the eviction and can better negotiate with landlords, allowing for proceedings to be played on a level field. In a social contract that champions individual liberties, equal access is the standard we ought to strive for.

However, private lawyers are expensive and inaccessible to many. Currently, as the New York Times reports, in cases of eviction, most landlords have legal representation; most tenants do not. [10] [11] Without guaranteed legal representation, the repercussions of eviction become more pronounced. Without a level playing field, the system returns to its habits and continues to do what is needs to meet the market demand. This cycle is allowed to exist because the legal system does not effectively check it. The system is Machiavellian; it does not consider those it leaves to fend in its wake.

The American social contract ought to consider the wellbeing of those at every echelon of the socioeconomic ladder, the ability to pursue the “life, liberty, and pursuit of happiness” so optimistically touted in the pages of the American dream. Here, this would look like extending legal accessibility to those involved in all legal situations. Remedies to this legal hole in the system have been tried around the country. For example, Bill de Blasio passed Intro 24-B in 2017, guaranteeing low-income tenants in New York City legal representation in court. [12] A similar system was implemented in Kalamazoo. With the help of lawyers, tenants are given more of a foot in the game when it comes to negotiating settlements, and expediting the process.

Although this solution is only the band-aid, it is an effective one. The success of this governmental provision should be seriously considered as successful precedent by governing bodies and legislators. The law ought to do more than remain a static reminder of what once was; it should strive to serve as a living entity that fights to promote justice and the cardinal values dear to this country. Extending legal access is the extension of the fair trial from criminal proceedings to all proceedings--a right everyone that should be guaranteed in our ever-changing social contract.


[1] U. S. Const. amend. VI

[2] Charles Allen, Kenyan R. McDuffie and Mary M. Cheh. "Low-income Tenants in D.C. May Soon Get Legal Help." The Washington Post. May 18, 2017. https://www.washingtonpost.com/blogs/all-opinions-are-local/wp/2017/05/18/low-income-tenants-in-d-c-may-soon-get-legal-help/?noredirect=on&utm_term=.0fa9c531d668.

[3] "Facing Eviction from Public or Subsidized Housing." Community Legal Aid. August 19, 2015. https://www.communitylegalaid.org/node/113/facing-eviction-public-or-subsidized-housing.

[4] "FindLaw's United States Supreme Court Case and Opinions."Findlaw.https://caselaw.findlaw.com/us-supreme-court/429/252.html.

[5] "FindLaw's United States Supreme Court Case and Opinions." Findlaw. https://caselaw.findlaw.com/summary/opinion/us-supreme-court/2015/06/25/273873.html.

[6] Gilmore, Brian. "Give Tenants Lawyers." The New York Times.October 09, 2018. https://www.nytimes.com/2018/10/09/opinion/evictions-homelessness-legal-aid.html.

[7] "HUD Subsidized Housing." TU History, Tenants Union of Washington State.https://tenantsunion.org/en/rights/hud-subsidized-housing.

[8] Murphy, Jarrett. "Evictions Are Top Driver of Homelessness." City Limits.December 12, 2014. https://citylimits.org/2014/11/13/evictions-are-top-driver-of-homelessness/.

[9] Park, Sandra. "Unfair Eviction Screening Policies Are Disproportionately Blacklisting Black Women." American Civil Liberties Union. April 18, 2018. https://www.aclu.org/blog/womens-rights/violence-against-women/unfair-eviction-screening-policies-are-disproportionately.

[10] "Signs Legislation to Provide Low-Income New Yorkers with Access to Counsel for Wrongful Evictions." NYC. August 11, 2017. http://www1.nyc.gov/office-of-the-mayor/news/547-17/mayor-de-blasio-signs-legislation-provide-low-income-new-yorkers-access-counsel-for#/0.

[11] Stewart, Marcia. "Legal and Illegal Reasons Landlords May Turn Rental Applicants Down." Nolo.com, July 14, 2015. https://www.nolo.com/legal-encyclopedia/free-books/renters-rights-book/chapter1-2.html.

[12] Thrush, Glenn. "With Market Hot, Landlords Slam the Door on Section 8 Tenants." The New York Times. October 12, 2018. https://www.nytimes.com/2018/10/12/us/politics/section-8-housing-vouchers-landlords.html.