The Massachusetts Supreme Judicial Court has decided to weigh in on the national debate about fair housing after the landmark ruling of the U.S. Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Readers of this and many other fair housing blogs will remember that Texas Department of Community Affairs established the principle that those claiming housing discrimination could use “disparate impact” analysis to establish a claim under the Fair Housing Act. Now, the Massachusetts Supreme Judicial Court is poised (possibly) to apply the U.S. Supreme Court’s ruling to a dispute in the Commonwealth. While I don’t yet have the briefs, the facts are described in Massachusetts Lawyers Weekly in an article posted today: http://masslawyersweekly.com/2015/09/17/fair-housing-case-may-push-disparate-impact-limits/.
Property owners William and Robert Kargman own Burbank Apartments in the Back Bay area of Boston. They had a Housing Assistance Payment contract for project-based Section 8 subsidy which expired in 2011. The Kargmans’ opponents are the Burbank Apartment Tenants Association, the Fenway CDC and the Massachusetts Coalition for the Homeless. On the one hand, the owners allege that they followed all federal and state requirements of their Section 8 contract and that they should be permitted to end their participation in the Section 8 program. If they do, this likely means the loss of apartments that are affordable to low and moderate income residents in the Boston area. On the other hand, the tenants argue that the expiration of the Section 8 subsidies will inevitably impact in a disparate way families of color because of “the relationship between race, income and poverty” (quoting Jay Rose of Greater Boston Legal Services who represents the tenants). Seems to me the tenants have the better argument: termination of Section 8 benefits certainly would have a disparate impact on groups protected under the Fair Housing Act. To put it differently, is a property owner’s decision to exit the Section 8 program, even if it is done in accordance with regulatory and contract requirements, exempt from scrutiny under the Fair Housing Act? My guess is probably not.
Interestingly, the SJC took the case on “direct appellate review,” directly from the decision of Judge Winik of the Housing Court. This action (which skips the intermediate appellate review by the Massachusetts Appeals Court) suggests that the Court may be prepared to blaze new trails in the field of fair housing law. The Court has also asked for amicus briefs and Nixon Peabody is preparing a brief on behalf of the Greater Boston Real Estate Board. Anyone else want to jump in to this interesting case?