The newly filed federal lawsuit is challenging one aspect of California's Housing Choice Voucher (Section 8) program—not the state's prohibition against source-of-income discrimination, but the additional obligations imposed on participating housing providers.

The lawsuit argues that California has gone beyond requiring landlords to consider Housing Choice Voucher applicants. Instead, it contends the state has effectively compelled participation in a federal program that Congress intended to be voluntary, while requiring landlords to accept conditions that allegedly infringe upon their constitutional rights.

Whether that argument ultimately prevails remains to be seen.

For many housing providers, participation in the Housing Choice Voucher program has always involved a series of tradeoffs.

Landlords have long viewed the Housing Choice Voucher program with mixed feelings. During slower rental markets, many owners appreciate the security of a government-backed rent subsidy. The prospect of predictable rental income often makes the program attractive, even if it means accepting additional paperwork, inspections, and coordination with local housing authorities.

When the rental market strengthens, however, the equation changes. As vacancies decline and qualified applicants become easier to find, many landlords question whether the administrative burdens associated with the program are worth the effort. That economic reality helps explain why litigation of this kind attracts attention.

What the Lawsuit Actually Challenges

At first glance, some readers may assume this lawsuit seeks to dismantle California's source-of-income discrimination laws or eliminate the Housing Choice Voucher program altogether. It does neither.

The lawsuit, filed by the Pacific Legal Foundation on behalf of Sacramento property manager Thomas Manning and Tower Bridge Property Management, instead challenges California's requirement that housing providers accept Housing Choice Vouchers as a lawful source of income. The case was filed in the U.S. District Court for the Eastern District of California against Kevin Kish, Director of the California Civil Rights Department.

According to the plaintiffs, the constitutional issue is not the voucher program itself. Rather, they argue that California has transformed what Congress intended to be a voluntary federal program into one that effectively becomes mandatory for many private housing providers. That distinction is important.

Once a landlord accepts a Housing Choice Voucher tenant, participation extends beyond simply collecting a government rent subsidy. Landlords must enter into contracts with local housing authorities, submit rental units for inspections to ensure compliance with federal Housing Quality Standards, and satisfy various administrative obligations throughout the tenancy.

The plaintiffs contend those conditions carry constitutional consequences. Specifically, they argue that by compelling landlords to participate in the voucher program, California is also compelling them to consent to government inspections of their rental properties, records, and business operations without the protections ordinarily guaranteed by the Fourth Amendment. In their view, the government cannot require property owners to surrender constitutional protections as the price of complying with California's fair housing laws.

Accordingly, the lawsuit asks the court to declare California's mandatory Section 8 participation requirements unconstitutional and to prohibit state officials from enforcing those provisions.

Whether the court ultimately agrees remains to be seen. But regardless of the outcome, the lawsuit raises a broader constitutional question that reaches well beyond landlord-tenant law: Can a state require participation in a government program if participation is conditioned upon the surrender of constitutional rights?

Be Careful What You Say

Even landlords who ultimately decide the Housing Choice Voucher program is not the right fit for their business must proceed carefully. California prohibits housing discrimination based upon a tenant's source of income, and enforcement efforts have increased in recent years. Fair housing organizations routinely use trained testers posing as prospective tenants to determine whether housing providers unlawfully reject applicants because they intend to use a housing voucher.

An offhand remark, a blanket refusal, or an email expressing a reluctance to rent to voucher holders can quickly become evidence in a discrimination claim. For that reason, landlords should understand not only what decisions they may make, but also how those decisions are communicated.

Another reality deserves mention. Some landlords hesitate to participate in the Housing Choice Voucher program because they assume voucher recipients are more likely to damage property, abuse drugs, engage in criminal activity, or otherwise become difficult tenants. Those assumptions are just that—assumptions.

Good tenants and bad tenants exist throughout every segment of the rental market, just as there are conscientious landlords and irresponsible landlords. A housing voucher does not predict whether someone will pay rent on time, maintain the property, or be a good neighbor.

Rather than painting applicants with a broad brush, housing providers should evaluate every prospective tenant on his or her own merits. Prior rental history, landlord references, documented lease compliance, and other lawful screening criteria often provide a far better indication of future tenancy than preconceived notions about a person's source of income.

Indeed, many voucher recipients become outstanding tenants. Having secured valuable housing assistance, they often have a strong incentive to preserve that benefit by complying with their lease obligations and maintaining a positive rental history.

Many housing providers understandably focus on the screening tools they believe have become more limited over the years. But regardless of how California's laws continue to evolve, successful tenant screening has never depended upon a single factor. The best predictor of future tenancy is often past tenancy.

Rather than relying on assumptions or stereotypes, landlords should focus on objective, lawful criteria that genuinely measure how an applicant has performed as a tenant. Prior landlord references, rental history, documented lease compliance, verification of the applicant's ability to satisfy financial obligations, and other permissible screening factors frequently provide far greater insight than generalized perceptions about any particular group of applicants.

In short, evaluate the individual—not the label.

Looking Ahead