New York law banning discrimination against Section 8 tenants struck down by judges
Credit: Thomas Habr on Unsplash
A New York appeals court on Thursday nullified a state law that prohibits landlords from discriminating against tenants who use Section 8 to pay rent. The five-judge panel sided with a landlord who appealed a lawsuit brought by Attorney General Letitia James in 2022, arguing the law violated his constitutional rights because the program allows housing officials to inspect his properties without a warrant, violating the Fourth Amendment.
The federal housing vouchers, known as Section 8, allow qualifying tenants to pay no more than 30 percent of their income toward rent, with the voucher covering the remainder. Around 123,000 New York City households use the program to pay part of their rent, with tens of thousands more across the state relying on it as well, according to Gothamist.
However, many voucher holders face “source-of-income” discrimination from landlords who refuse to rent to tenants using Section 8. According to the New York Times, the “pervasive practice,” seen nationwide, shuts low-income tenants out of many types of housing and can exacerbate segregation and impact the housing market.
In 2019, the state amended its Human Rights Law to protect New Yorkers from source-of-income discrimination, making it illegal to deny someone housing based on the type of income they receive and expanding eligibility to nearly all types of housing statewide.
Thursday’s ruling stems from a 2022 lawsuit filed by Attorney General Letitia James against Ithaca landlord Jason Fane, who was accused of refusing to accept Section 8 vouchers at his properties in violation of the law. A judge sided with Fane in 2023, prompting James to appeal to a higher court later that year.
While the judges recognized Section 8 as a “critical tool” for expanding affordable housing and noted that source-of-income discrimination often serves as a “proxy” for other forms of bias, the judges ultimately sided with Fane.
“Landlords are now forced to consent to governmental searches of their rental properties and records,” the judges wrote. “Given that, for the reasons that follow, the source-of-income discrimination law violates landlords’ Fourth Amendment rights to be free from unlawful searches, we are constrained to conclude that the law is unconstitutional on its face.”
The decision could have broader consequences if landlords use it to deny applicants with other forms of assistance or to challenge local anti-discrimination laws, such as NYC’s 2008 source-of-income protections.
City Hall spokesman Matthew Rauschenbach told the Times that the city is “evaluating the potential implications” of the ruling.
In a statement, James said her office is reviewing the judge’s decision.
“Every New Yorker deserves access to safe and dignified housing regardless of their income or background,” James said. “Housing vouchers help thousands of New Yorkers stay in their homes, make ends meet, and raise their families. My office has always fought to protect New Yorkers’ right to housing. We are reviewing today’s decision.”
The ruling also comes as the future of the city-run housing voucher program remains uncertain. Despite being passed by the City Council and upheld in court after several challenges, Mayor Zohran Mamdani in February said he no longer intended to support the expansion of CityFHEPS.
As one of the nation’s largest rental assistance programs, CityFHEPS allows tenants to pay 30 percent of their income toward rent, with the city covering the remainder.
A 2023 legislation package that expanded eligibility for the vouchers survived a veto and lawsuit from former Mayor Eric Adams. However, Mamdani said the city’s projected $7 billion budget deficit led him to ask a judge to adjourn the case while officials work with the Council and the Legal Aid Society, which filed the suit, to find a solution.
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