The Seattle City Council has demonstrated before it isn’t all that concerned about math, supporting a tax on jobs that is threatening new jobs in the city while producing a tiny number of units, 1,780, five years from now, maybe, at a cost of $285,000,000. Councilmember Lorena Gonzalez claims this small number will somehow address a stated problem of 29,000 cost burdened households and 8,500 homeless. It doesn’t add up. And the Council isn’t worried about violating the law and the Constitution; a recent court decision found that the City’s First In Time (FIT) rule that turned the first person to show up for a rental unit into a part of a protected class violates free speech protections of the First Amendment. Now the Rental Housing Association (RHA) and the Pacific Legal Fund (PLF) are taking on the City’s fancifully named Fair Chance Housing Ordinance that prevents screening of tenants for criminal activity.

You can read the full legal filing here.

The stated intent of the ordinance, giving people coming out of the prison system a chance at housing, simply won’t be achieved by “banning the box.” Landlords will still be screening for credit score, previous rental history, and of course employment and income, all things that are huge challenges for people exiting the system. The problem is not just having a record and being rejected, it’s all those other challenges like trying to find a job and having lousy credit. Also, it’s very easy to get sent back to prison; probation violations can be as small as missing a scheduled meeting with a probation officer or being in the company of someone else in possession of a weapon or drugs.

If banning the box or eliminating screening at application would magically make all these other issues moot, I’d be the first to support the ban. But it doesn’t. It simply creates one more potential violation for landlords screening tenants and when it fails to produce any results, the Council is likely to overreach and band credit and income checks too — just another step in the march to rent control. Renting private property is risky, and the purpose of screening is to limit that risk. What local and state governments could do is provide support to people leaving the system before they even leave with credit clean up, preparing rental histories, and connecting with other helpful services outside to get a job and other support systems. Finally, backing up regular deposits with a risk pool funded by landlords and by government could help offset the risk and make it easier to rent.

All of these things require actual work and coordination, something the City Council doesn’t know how to do. It’s far easier to pass legislation that feels good and adds complexity without any benefit. The problem with the legislation isn’t just that it’s mostly worthless grandstanding it’s also likely also unconstitutional. One obvious argument is that the law prevents private property owners from deciding how they want to rent out their own property. One of the plaintiffs in the case is a family who rents out a nearby property.

The Yims value their right to select their tenants. The Yim family cannot afford to absorb losses because of a tenancy gone bad. And for a family with three children, selecting a tenant who will also be their close neighbor requires careful discretion. The Yims share a yard with their renters, and the Yim children are occasionally at home alone when their renters are home. The Yims treasure their right to ensure compatibility and safety for themselves and their tenants.

To offset risks they likely will have to raise deposits and rents if something goes wrong. It isn’t a question of not liking people with a record, but using available resources to know more about tenants. And while it is true that people or color are more likely to be swept up into the criminal justice system, they are already a protected class. Seattle’s legislation make anyone with a record protected which begs the question, why have criminal records at all. The answer is obvious: people want to know whether a person has committed a crime before entrusting them with money, property, or supervision of children. Being able to use information to screen use by someone else of private property is essential to it being private.

Secondly, the law infringes on free speech.

The Fair Chance Housing Ordinance violates speech rights on its face and as applied by prohibiting individuals and organizations from accessing and sharing truthful information about housing applicants. This prohibition targets speech based on content, speaker identity, and purpose. The Ordinance forbids anyone from inquiring after criminal background for the purpose of vetting housing applicants, but it does not forbid such inquiries for other purposes. This burden on RHA’s and landlords’ speech rights must satisfy heightened judicial scrutiny.

Again, I don’t support anyone denying a person a lease only because they have a record. I doubt any good landlord would. They might ask for a cosigner or an extra deposit, but if every other variable for screening was solid, there’s a much better chance a landlord would give the person that chance. But that’s the point, there’s lots of ways to screen and most people leaving the system or with a record are going to have other disqualifying data. So limiting use of criminal records accomplishes nothing but preventing access and sharing of public information.

If the City truly wanted to make life easier for people getting back on their feet after being in jail, they would develop a collaborative program working with the Department of Corrections, case managers, probation officers, and it would have allocated the resources to help offset risk and even help with the rent by expanding the Earned Release Vouchers that are currently only for three months. Hopefully when this ordinance is struck down, the City and State will come back with something that actually helps rather than just making Councilmembers feel batter about themselves.