Silly Housing Act
Some Clinton regs live on.

Mr. Clegg is general counsel at the Center for Equal Opportunity.
June 20, 2001 8:50 a.m.

hould it be illegal discrimination if a landlord has occupancy restrictions of no more than two people per bedroom in an apartment? What if he just charges more per room the more people are in it, like a hotel does? Would you praise or condemn a landlord who refuses to rent an apartment with lead-based paint to families with young children?

In the closing days of the Clinton administration — between December 15, 2000, and January 18, 2001 — the Justice Department made a half-dozen last-minute filings, taking the position that all of this violates federal law.

The statute in question is the federal Fair Housing Act. The original version of this law was passed in 1968 and was aimed at racial discrimination, but it was amended 20 years later, in 1988, to add a ban against discrimination on the basis of "familial status." This rather unwieldy phrase was designed to stop landlords from refusing to rent to people just because they had kids. The assertion was that this kind of discrimination was making it too hard for such families to find a place to live.

It's pretty hard to believe that, although for thousands of years parents were able to find places where they could live with their children, suddenly this had become impossible without the intervention of the federal government. Sure, there are probably some apartment buildings where children are less welcome than in others. For some tenants, peace and quiet is at a premium, and landlords that cater to this clientele may be reluctant to hear the pitter patter of little feet.

Another problem is that, in some neighborhoods, one family's child is or grows up to be another tenant's thug, hanging around the lobby at the first of the month when the older residents come back from cashing their Social Security checks. These older residents might prefer the greater security and peace of mind that comes with not having to deal with this problem. Why deny some of the amenities of the golden years to those who can't afford a gated community or gold-plated retirement home?

There will, after all, still be plenty of places happy to cater to families with children. The Left is big on diversity, except of course when it comes to allowing choices within a free economy. The market is more likely to foster a variety of different amenities in apartment dwelling than federal housing commissars will be.

The executive branch's enforcement policies have made this already dubious statute worse. Its problems are multiplied when the bureaucrats enforcing it don't care whether a landlord's policy was even aimed at excluding children. Occupancy (people per bedroom) limits, for instance, may have the effect of excluding many families with children, but it is not at all clear that this is their aim. The landlord, for instance, may instead be concerned about hygiene or about an apartment being turned into a hippie commune or collegiate Animal House. But the enforcement bureaucracy has now made clear that even a rather reasonable two-person-per-bedroom limit — or a rent increase for each additional person — is subject to a "disparate impact" challenge.

Even policies that actually are aimed at children are not necessarily to their detriment. The reluctance to rent an apartment with lead-based paint to a family with a young child is one example. Another is limiting the access that children have to swimming pools or other potentially dangerous areas. If young children are limited to wading pools, we quickly see another example of how the analogy that Congress has attempted to draw between racial discrimination and discrimination on the basis of familial status really doesn't work. Separate schools may be "inherently unequal," as the Supreme Court famously ruled in Brown v. Board of Education, but is this really true of separate pools, too?

In a friend-of-the-court brief in another case filed late last year, the Justice Department argued that children could not be barred from the upper floors in an apartment building. The brief dismissed "stereotypes about [children's] behavior or potential concerns about health or safety," and argued that such stereotypes and concerns would be rejected if used to discriminate against women and racial or ethnic minorities, and so they should be rejected here, too. The trouble is, some stereotypes are true and some parental concerns are justified: Children really are noisy and really are more likely than adults to fall down stairs or out of windows or off balconies.

When I was in the civil-rights division just after the 1988 amendments had been added to the Fair Housing Act, it was a running joke how many "familial status" complaints were referred to us by the Department of Housing and Urban Development and, in particular, how many involved trailer parks. It is one thing for the federal government to be trying to root out discrimination against African Americans in the apartments rented them — an actual problem, I believe — but was there really a national crisis involving kids and trailer parks, are "Adults Only" trailer parks really a horrible scandal, and is stamping them out the best allocation of the federal government's resources? Based on the deluge of cases we got from HUD, apparently someone believed the answers were definitely yes, yes, and yes.

Turns out that things haven't changed much. On March 16, 2001, the Bush administration filed one of its first fair-housing complaints. The charge is that the defendant has retaliated against a tenant for its claim filed under the Fair Housing Act. The underlying claim? That a trailer park had committed familial status discrimination when it "began charging an additional $15.00 month [sic] for each occupant in excess of two persons per unit at the Park."