REMEDIATING RACISM FOR RENT: A LANDLORD'S OBLIGATION UNDER THE FHA.

• Author: Krent, Mollie
• Position: Fair Housing Act of 1968

TABLE OF CONTENTS INTRODUCTION I. INTERPRETING THE FHA TO BAR TENANT-ON-TENANT HARASSMENT A. The FHA: Providing for Housing Access and Security 1. The FHA's Origins 2. The FHA's Antidiscrimination Mandate 3. The FHA's Reach: Access and Beyond 4. Persons Subject to Suit Under the FHA B. Liability for Third-Party Harassment in Other Civil Rights Contexts 1. Title VII, the ADA, and Negligence 2. Title IX, [section] 1983, Bivens, and Deliberate Indifference II. CURRENT ARTICULATIONS OF A TENANT-ON-TENANT LIABILITY RULE A. The HUD Rule: Negligence Liability B. The Seventh Circuit Rule: Deliberate Indifference C. The Second Circuit Rule: No Liability Without Discriminatory Intent III. NEGLIGENCE AND THE SPECIAL STATUS OF THE HOME A. The Space Between VII and IX B. A Negligence Standard Fosters Change C. Negligence Reflects the Landlord-Tenant Relationship CONCLUSION INTRODUCTION

In 2010, Donahue Francis, a Black man, signed a rental lease agreement with Kings Park Manor (KPM). (1) The quiet suburban community of Kings Park, New York, represented a change for Francis: he came there "in search of a better housing situation" after years of living in neighborhoods with higher crime rates. (2) In many ways, Francis's tenancy in Kings Park--a predominantly white community in which nearly eight out of ten residents owned their homes (3)--neatly aligned with the goals of the Fair Housing Act (FHA), which was passed for the express purpose of furthering racial integration. (4)

But Francis did not find the peace he sought. By February 2012, Francis's next-door neighbor Raymond Endres, a white man, began harassing him. (5) Over several months, Endres called Francis a "fucking [n-word]," a "fucking asshole," a "fucking lazy, god-damn fucking [n-word]," and he called out to Francis in the common areas or while Francis was within his own apartment with the door open. (6) Endres even threatened Francis, saying "I oughta kill you, you fucking [n-word]." (7) Francis contacted KPM and the property manager about Endres's harassment four times. (8) KPM took no action to address the harassment, despite the police having also notified KPM of the allegations and charging Endres with aggravated harassment. (9) When KPM's property manager contacted KPM's owners seeking instruction, they "told her not to get involved." (10)

Ultimately, the harassment continued up until Endres's lease expired in January 2013 and he left the complex. (11) Francis sued both Endres and KPM for violating various provisions of New York state laws, the Civil Rights Act of 1866, and the FHA. (12) The Eastern District of New York dismissed the FHA claims, holding that the FHA only prohibited intentional discrimination and could not hold a landlord liable for a tenant's harassment. (13) Francis then appealed to the Second Circuit.

Francis's case against KPM presented novel questions for the Second Circuit: could a landlord be held liable for tenant-on-tenant harassment under the FHA and, if so, when? (14) This question had only been addressed explicitly by one other federal court of appeals, the Seventh Circuit, which in 2018 held that a landlord can be liable when she is deliberately indifferent to tenant-on-tenant harassment. (15) But in its March 2021 en banc opinion, the Second Circuit took the opposite position, holding that a landlord could not be held liable for tenant-on-tenant harassment. (16)

Other courts of appeals who have yet to answer these questions should not follow suit. Liability in this context has great individual and national import. Reported instances of housing discrimination and hate crimes are on the rise. (17) And harassment is especially invidious when it occurs in the victim's home. (18) A home is one's castle: the space historically and culturally recognized as where one should have ultimate dominion. (19) The home is particularly important to the most oppressed persons in society as a site necessary to their survival and liberation. (20) Unlike work or school, there can be no escape and no reprieve when one suffers harassment within the home.

Homes are the building blocks of any community, and courts need to pay careful attention to their collective composition. The United States remains extremely residentially segregated: the average white person lives in a neighborhood that is only 8percent Black and the average Black person lives in a neighborhood that is 35percent white. (21) While rates of residential segregation show that the United States is becoming less segregated, Black Americans are more segregated than any other discrete racial or ethnic group. (22) Research around housing choice points to fear of racial backlash as a factor preventing further integration. (23) Clarifying a landlord's duty under the FHA both not to discriminate in the renting of her properties and to ensure a harassment-free environment might quell some of the fear impeding further integration. (24)

This Note will address two open questions: (1) whether landlords can be liable when a tenant harasses another tenant on the basis of a protected characteristic and (2) when landlords will be liable when a tenant harasses another tenant on the basis of a protected characteristic. The purpose of this Note is to argue that courts should recognize a negligence liability rule for landlords who fail to respond to tenant-on-tenant harassment. Such a rule fits into the regulatory scheme of the FHA, accords with other civil rights statutes, and furthers the policy goals of the Act.

Part I of this Note will answer the first question: the FHA should be interpreted to accommodate a landlord's liability for tenant-on-tenant harassment because of the structure of the Act and because of how similar civil rights statutes make analogous harassment actionable against authority figures. Part II will examine the answers that have been presented so far with respect to the second question, namely the Department of Housing and Urban Development's (HUD) negligence rule, the Seventh Circuit's deliberate indifference rule, and the Second Circuit's recent opinion in Francis II holding that landlords are not liable for tenant-on-tenant harassment. Part III will then explain why a negligence standard of liability is most proper for the housing context, arguing that such a rule best reflects the special status of the home and already aligns with the duties a landlord owes her tenants.

1. Interpreting the FHA to Bar Tenant-on-Tenant Harassment

   Since the scope of the private cause of action in the FHA is a statutory-interpretation question, this Part uses the analytical tools courts usually employ when tackling such questions to uncover the doctrinal foundation of a landlord's liability for tenant-on-tenant harassment under the Act. For example, when the Supreme Court decided in Texas Department of Housing and Community Affairs v. Inclusive Communities Project that disparate impact claims were cognizable under the FHA, it looked to the text of the FHA, congressional intent, and analogous civil rights statutes that had already been held to impose disparate impact liability. (25) This Part proceeds similarly, beginning with an analysis of the history, text, and purpose of the FHA and exploring the parallel liability rules in analogous contexts.

   Many civil right statutes hold authority figures such as employers, schools, or prison guards liable for harassment, even under circumstances where they did not commit the harassment themselves. Comparing analogous civil rights provisions reveals that courts should also interpret the FHA to impose liability on a landlord for tenant-on-tenant harassment. While a few courts in addition to the Second Circuit have already held that landlords cannot be liable for tenant-on-tenant harassment, (26) those courts misunderstand the doctrinal foundation of this liability rule. This Note argues that the FHA prohibits tenant-on-tenant harassment and that a landlord can be liable for such conduct.

   1. The FHA: Providing for Housing Access and Security

      The FHA's history, text, purpose, and interpretive relationship to analogous civil rights statutes form the statutory foundation upon which a landlord can be found liable for tenant-on-tenant harassment. In order for the FHA to prohibit such harassment, the statute first must be interpreted to protect a tenant in situations other than the acquisition of a home. The best reading of the FHA's plain text and purpose is a broad one, under which the Act also protects tenants from harassment during their occupancy. The FHA fits into a patchwork of other civil rights causes of action that already recognize a defendant's liability for action or inaction in response to harassment. (27)

      1. The FHA's Origins

         In response to the summer race riots of 1967, (28) President Lyndon B. Johnson established what became known as the Kerner Commission to investigate the root causes of racial unrest in the United States and offer potential solutions. (29) The Commission's report, published in March 1968, was bleak. It described the country as "moving toward two societies, one black, one white--separate and unequal." (30) The Commission pointed to housing inequity as one of the causes of the widespread strife: Black Americans were more likely to live in housing that cost more than white Americans' housing despite being three times more likely than white Americans to live in "overcrowded and substandard" housing. (31)

         To quell racial violence and afford "common opportunities for all within a single society," (32) the Commission suggested a range of economic and social initiatives. (33) One suggestion was for the government to "[e]nact a comprehensive and enforceable Federal open-housing law to cover the sale or rental of all housing, including single-family homes." (34) Roughly a month after the report's publication, on April 4, 1968, Dr. Martin Luther King, Jr. was assassinated. (35) A week later, on April 11, 1968, Congress passed the...