abstract.
Despite transformations in Chicago’s public
housing over the past few decades, many families continue to live in deplorable
conditions. The existing landscape of legal rights and services for low-income
tenants is unable to address the problem comprehensively. We must consider
systemic solutions. To that end, this Essay argues that housing advocates
should collaborate with resident councils, consider innovative approaches to
impact litigation, and, perhaps most importantly, push for increasing
local-government oversight of public-housing authorities.
Introduction
The United States is facing a housing-affordability crisis.
The situation is particularly dire for our lowest-income families. There is no county in the country
where “full-time, minimum-wage workers can afford a two-bedroom apartment
priced at the fortieth percentile of area rents.” And “[n]ationally, there are only thirty-six affordable,
available, and adequate homes for every hundred extremely low-income
households.”
Public housing is an important source of stable, affordable
housing for low-income families throughout the United States. The U.S.
Department of Housing and Urban Development (HUD) allocates federal funding to
locally appointed public-housing authorities (PHAs) to own and operate
public-housing portfolios, which range from single-family houses to high-rise
apartments. Public housing
is priced below market rates, and residents typically pay 30% of their monthly
adjusted income for rent. About two million people
live in public housing, 43% of whom are Black and 26% of whom are Latinx. Families in public housing include
some of the most disadvantaged populations, including seniors, people with
disabilities, and single-parent households with young children.
Today, the public need far outweighs the available supply, as over 1.5 million
families are on public-housing waitlists across the country.
Public housing suffers from disinvestment. Federal budget
cuts and restrictions on the creation of new public-housing units have limited
the ability of PHAs to provide safe, decent housing at the local level.
Congress has severely cut PHA budgets since the 1990s, resulting in over
100,000 units lost between 2000 and 2012 and an estimated $70 billion needed
for repairs. There are also
restrictions on the total number of public-housing units that can be built. The
Faircloth Amendment effectively prevents PHAs from using federal funds to
construct or acquire new public housing if it would result in a PHA having more
public-housing units than it did in October 1999. Rental
Assistance Demonstration program conversions are an increasingly popular way of
leveraging public- and private-sector financing for preserving buildings, but
the program raises concerns about the long-term viability of public-housing
units.
Today, the living conditions in many public-housing units put
residents’ health at risk and compound the psychological stressors of living in
poverty. Asthma, for example, is “the most common chronic childhood disease.” Mold, water damage, and poor
ventilation in homes can trigger and worsen asthma. Dilapidated buildings with
holes in the walls and ceilings allow easier entry of roaches and rodents,
which contribute to allergens. As a result, Black and
Latinx children in low-income urban environments, and especially those in
public housing, are at much higher risk of developing asthma and requiring
hospitalization. During my
fellowship at Legal Action Chicago, I saw how faulty construction and poor
building maintenance can lead to injuries. Deteriorated floorboards and stairs
were serious falling hazards. Unaddressed leaks weakened ceilings over time to
the point that they sometimes caved in. More generally, lack of heat and
running water can spread and worsen flu, coughs, colds, and other illnesses. Having to bathe in cold water can
exacerbate the health issues of residents with heart and chronic-pain
conditions.
Living in substandard conditions also strains mental health.
Home is where we want to feel safe and comfortable. Yet, for families living in
substandard housing, home is often a source of stress—from the stress of pest
infestations and winter heat outages to the stress of not being able to invite
family and friends into one’s home. These anxieties are especially felt in
public housing, where families often deal with unresponsive housing
authorities, cannot afford to make the repairs themselves, and lack the
resources to find other housing options. Parents become preoccupied with their
housing situation. They may lose sleep or have difficulty concentrating at
work. Due to
parental stress and parenting behaviors that result from poor housing
conditions, children may even develop emotional and behavioral problems and
perform worse in school.
Chicago is a compelling case study for the past, present, and
potential future of public housing in the nation. The Chicago Housing Authority
(CHA) is the country’s third-largest PHA, providing homes for 65,000 families
throughout the city, including over 20,000 families who live in public housing. In the 1960s,
Chicago saw the country’s first major public-housing racial-desegregation case. By the end of the twentieth century,
the city’s high-rise housing projects had become national symbols of crime,
decay, and concentrated poverty in federally subsidized housing. In 2000, CHA embarked on one of the
largest public-housing experiments in the country—tearing down nearly 18,000
units and replacing them with reconstructed or renovated public-housing units
scattered throughout the city.
While the face of public housing in Chicago has dramatically
transformed over the past few decades, many CHA families continue to live in
deplorable conditions. Deteriorating building infrastructure, heat outages,
mouse and roach infestations, mold, leaks, floods, and high vacancy rates are
urgent problems in a number of CHA developments. Unfortunately, these issues have yet
to be addressed in a systematic way. The existing landscape of legal rights and
services for low-income tenants is unable to improve comprehensively the living
conditions in CHA housing. Many public-housing residents do not bring
conditions complaints for fear of retaliation. The minimal penalties that PHAs face
for failing to make necessary repairs in individual units are an insufficient
incentive to change maintenance practices. Legal-aid attorneys subject to Legal
Services Corporation (LSC) funding restrictions can typically challenge
building conditions only on a case-by-case basis, in the context of eviction
defense. As a result, it is necessary to
pursue new, innovative strategies to tackle widespread conditions problems
affirmatively and systematically. Systemic issues require systemic solutions.
By combining the literature on public-housing history and
tenant-rights law with the lived experiences of public-housing residents, this
Essay uses Chicago as a case study to explore strategies for systematically
improving public-housing conditions. Part I provides a brief history of
Chicago’s public housing, highlights the persistence of substandard living
conditions, and offers a ground-level perspective on the issues based on my
experiences working with CHA families during my fellowship. Part II describes
how the existing landscape of legal rights and services for low-income tenants
is unable to address comprehensively the conditions problems that CHA families
deal with on a daily basis. Part III argues that housing attorneys should
collaborate with resident councils and consider new, innovative approaches to
representing large groups of public-housing residents via class-action
litigation. Attorneys should also shift their focus to advocating for
local-government oversight of PHAs, which would give cities the power to
inspect, monitor, and penalize PHAs proactively for building- and health-code
violations.
I. the transformation of chicago’s public housing
From its beginning, Chicago’s public-housing high-rises were
constructed in poor, racially segregated areas, in keeping with the city’s
history of racial inequity. While public housing initially
offered an important source of stable housing for many low-income families, it
deteriorated over the latter half of the twentieth century due to CHA
mismanagement, federal budget cuts, and heavily concentrated poverty. HUD took
control of CHA from 1995 to 1999. Shortly thereafter, CHA implemented the Plan
for Transformation, a strategy aimed at deconcentrating poverty and improving
public-housing quality by demolishing or rehabilitating many of the high-rises
and building decentralized scattered-site and mixed-income units throughout the
city.
While the Plan for Transformation dramatically changed the
face of Chicago’s public-housing stock, significant challenges remain. Many of
the redeveloped housing complexes have fallen into disrepair. CHA has not
replaced nearly as many units as promised, leaving thousands of former
residents unable to return to their homes. CHA’s vacancy rates are well beyond
HUD’s guidelines, and it can take years to fill vacant units with new families.
In the midst of our housing-affordability crisis, CHA is struggling to provide
safe, decent homes for some of the lowest-income Chicagoans.
A. The History of Public Housing in Chicago
Public housing in Chicago was first developed under the
Housing Act of 1937, which was enacted in the midst of the Great Depression as
part of the New Deal-era programs to combat urban blight. Congress passed the
Housing Act to eliminate dangerous conditions in the urban slums of the early
1900s and to promote “safe” and “sanitary” dwellings for low-income families. In doing so,
it established the contemporary model of providing federal funds to local PHAs
to own and operate affordable housing for low-income families. Chicago’s public
housing grew in the 1940s, occupied by low-income families, then war-industry
workers, and later veterans returning from World War II.
Chicago is infamously one of the most segregated big cities
in the country. Throughout
the twentieth century, public-housing policy worked in tandem with redlining
and other discriminatory housing practices in the private market to reinforce
residential segregation patterns. The federal “Neighborhood
Composition Rule” initially required that public-housing residents be of the
same race as residents in the surrounding neighborhood, so as not to “alter”
the preexisting racial composition. Chicago’s
city aldermen, who must approve construction of new housing projects in their
wards, often blocked developments in predominantly white wards. Thus, more
than ninety-eight percent of all public-housing units built between the 1950s
and 1960s were in Black neighborhoods.
High demand for affordable housing, coupled with the cost and
limited availability of land where Black families could live, led to the
dominance of high-rise public-housing towers. The State
Street Corridor, which included Harold Ickes Homes, Stateway Gardens, Ida B.
Wells Homes, and the Robert Taylor Homes, stretched over four miles across the
historic Bronzeville neighborhood on the South Side and became the largest
contiguous expanse of public housing in the United States. At its
height, CHA was the largest landlord in Chicago. It owned over
40,000 public-housing units throughout the city, which provided stable homes
for over 100,000 residents, most of whom had few, if any, other options in the
private housing market.
In 1966, Chicago public-housing residents brought the
nation’s first major public-housing desegregation case, Gautreaux v. Chicago
Housing Authority. Led by Dorothy Gautreaux
from Altgeld Gardens on the far South Side, residents sued CHA for racially
discriminating by selecting
housing-project sites in predominantly Black neighborhoods and using racial
quotas to limit the number of Black residents in housing projects in
predominantly white neighborhoods. The court
held that public-housing residents have a Fourteenth Amendment right to have
public-housing sites selected without regard to a neighborhood’s preexisting
racial composition. Based on demographic
statistics of the housing-project sites considered, the court found “a very
high probability, a near certainty,” that race was the basis for decisions on
where to build public housing. The ruling in Gautreaux led to a one-for-one policy
under which CHA could only build new public-housing units in Black
neighborhoods if CHA also built an equal number in racially diverse
neighborhoods. It also
created a voucher program that allowed a limited number of public-housing
families to move to more affluent areas.
As poverty became increasingly concentrated in the high-rise
projects and CHA’s financial resources diminished, public-housing quality
declined over the latter half of the twentieth century. Deindustrialization and
white flight led to declines in population and public revenues in urban centers
around the country. In 1969, Congress passed the Brooke Amendments, which
required public-housing residents to pay no more than a percentage of their
household income (first twenty-five percent, then thirty percent) as rent.
This marked the end of CHA’s fixed-rent policy. More importantly, it reduced
the amount of rent revenue that CHA could use to cover maintenance costs. Public
housing became more attractive to the lowest-income families in the city. Many
working families that could afford market-rate housing left. CHA fell
further behind on maintenance inspections and repairs, often turning a blind
eye to residents’ complaints. At the end of the century, CHA
developments would constitute eleven of the fifteen poorest census tracts in
the nation.
By the 1990s, Chicago’s public-housing projects were in
disarray. The Cabrini-Green Homes on the Near North Side had become a symbol
for crime and decay in federally subsidized housing. Elevators
frequently went out, trash chutes piled up, and cockroaches infested the
buildings. CHA’s
disinvestment—unlit hallways, elevators, and stairwells—contributed to the
prevalence of gang activity, drug trafficking, and assault. In 1991,
residents at the West Side housing project Henry Horner Homes—recently renamed
Westhaven Park—filed a class-action lawsuit, arguing that their buildings had
deteriorated to the point that they were “de facto demolish[ed].” At the time,
forty-nine percent of the units that comprised Horner were vacant, and the
conditions were perhaps the worst across all CHA developments. The Henry
Horner Mothers Guild, a group of mothers in public housing, organized their
neighbors to join the class of plaintiffs and launched a media campaign
documenting their fight for better living conditions, which drew further
attention to the public-housing crisis.
Due to widespread conditions problems, rampant crime, and
mismanagement, HUD took over CHA from 1995 to 1999, prompting massive changes
in leadership and direction. The CHA Board of
Commissioners voted to transfer control of CHA to HUD, as part of HUD’s larger
recovery efforts to improve “troubled” PHAs in major cities throughout the
country. When CHA regained control, it became
part of HUD’s Moving to Work program, which gives participating PHAs
flexibility and discretion to use federal funds to adapt public-housing
strategies to fit local needs. In turn, CHA developed one
of the most ambitious plans in the country for transforming public housing.
Launched in 2000, the Plan for Transformation aimed to
address the public-housing ills of crime and disrepair associated with
concentrated poverty in the high-rises. CHA accelerated demolition of over
18,000 public-housing units. In their place, CHA
prioritized scattered-site developments—typically smaller, two- to three-story
apartment complexes dispersed throughout the city’s neighborhoods; mixed-income
buildings, where CHA residents share buildings with neighbors who pay market-
or affordable-rate rents; and housing-choice vouchers, which allow low-income
families to pay no more than thirty to forty percent of their incomes for rent
in the private market, with CHA paying the remainder directly to the landlord. Residents
displaced by the demolitions were generally guaranteed the “right to return” to
redeveloped public-housing units. In total, CHA committed to
reconstruct or rehabilitate 25,000 units. CHA has yet
to deliver fully on this promise.
B. Chicago’s Public-Housing Challenges in the
Twenty-First Century
The Plan for Transformation improved public housing, but
significant challenges remain. Many CHA residents see their replacement housing
as an improvement from their original homes and feel safer in their new
neighborhoods. The scattered
sites, for example, have allowed families to live in lower-poverty and more
racially diverse neighborhoods. Mixed-income housing also offers an
important, socioeconomically integrated option. However, the scarcity of
mixed-income units throughout the city and the stricter work requirements and
background checks required to live in these buildings limit the number of
residents who can take advantage of this opportunity.
Today, housing-choice vouchers are by far the most popular
option for subsidized housing in Chicago, with around 47,000 families receiving
assistance. While voucher holders appreciate the
power of being able to choose where to rent in the private market, they often
experience the compound effects of race and source-of-income discrimination
when trying to rent in more affluent, racially diverse neighborhoods. Landlords
in these areas can be unwilling to rent to housing applicants who come with
vouchers. A voucher holder in the Garfield
Park neighborhood on the West Side commented on the struggle of finding housing
in more affluent areas, saying, “[We’re] very
stuck . . . It’s a stigma attached to Section 8 that we
don’t want to work . . . we’re not educated, we don’t take
care of ourselves, our children are just reckless.” As a result,
there are more voucher holders living in the majority-Black communities of
South Shore (3,487), on the South Side, and Austin (3,130), on the West Side,
than in all of the city’s nineteen majority-white communities combined (2,357).
Despite the problems associated with the high-rise projects,
the large-scale demolitions brought by the Plan for Transformation disrupted
residents’ sense of home. Many residents lamented the loss of the community
they had in the high-rises—the social networks, support systems, and ability to
organize with their neighbors for collective action. A former
Cabrini-Green resident and community activist reflected that there was “a sense
of community, a sense of family” in the high-rises and that “there was a sense
of not knowing how people were going to receive us” in other neighborhoods. Over the
years, many displaced residents with the “right to return” to redeveloped
public-housing units have not been able to move back. CHA’s construction of new buildings
to replace the high-rises has stalled, and there are not enough new units to
accommodate the former residents. Due to bureaucratic errors,
CHA has also lost track of many of the public-housing residents whose homes
were demolished. There are
still large swaths of vacant land throughout the city where the high-rises once
stood, some of which were recently leased to the private sector in
controversial, high-profile deals to build sports facilities.
Moreover, conditions problems are widespread in the city’s
existing public housing. Several CHA developments, including two of the largest
in the city—Altgeld Gardens and Trumbull Park Homes—along with nearly all of
the scattered-site regions, routinely score very low on routine HUD
inspections. For the past
few winters, many CHA residents have dealt with heat outages, sometimes using
kitchen ovens to warm their homes for days. A resident of
Washington Park Homes on the South Side expressed frustration over the dilemma
of using an oven to warm her home this past February: “You have to make that
determination: Do I need to be warm right now, or do I care to breathe these
fumes [and gases from an open oven] in?” Residents
often complain of mouse and roach infestations. Elevators
frequently go out, which is especially troubling for seniors in the high-rises,
such as Ella Flagg Young Apartments on the North Side, where residents have
limited mobility. Mold is pervasive in many
of the buildings, as are leaks. One out of every six
scattered-site homes throughout the city sits vacant. Some CHA properties have become hubs
for drug activity and hotspots for pest infestations after being vacant for
years.
In sum, the city is not able to supply nearly enough safe,
affordable housing to meet the overwhelming demand. In 2021, over 1,700—around
fifteen percent—of CHA’s public-housing units were vacant, compared to the HUD
national recommendation of only four percent. Many of these
units were vacant for no documented reason, and most have been vacant for over
fifty days, indicating
significant delays in moving families into available units. Meanwhile, the
demand for affordable housing is perhaps higher than ever. Almost half of
Chicago renters are cost-burdened, spending more than thirty percent of their
income on housing. There are over 200,000
people, or roughly seven percent of the city’s population, on CHA’s waiting
list.
Public-housing applicants can typically expect to wait several years to get a
unit. The waitlist
for housing-choice vouchers has remained closed since 2014 due to exceedingly
high interest.
C. A Ground-Level Perspective on Conditions
Problems in Chicago’s Public Housing
During my year-long fellowship at Legal Action Chicago, I
investigated public-housing conditions city-wide. I met with nearly all of the
local advisory councils (LACs) at each of the public-housing developments and
visited individual units to document the living conditions. When the problems
were severe, I advocated on behalf of the residents, communicating with CHA and
property management and, if necessary, presenting demand letters to have the
issues resolved. I also worked on class-action litigation in support of the
consent decree governing the Henry Horner Homes on the West Side, which allowed
me to visit residents’ homes and see conditions problems firsthand. In total, I heard from nearly one
hundred public-housing residents living in substandard conditions and visited
about forty units across the city. Drawing on my experiences during the
fellowship, this Section will provide a ground-level perspective of the
substandard living conditions in several CHA developments and the challenges
that residents face when seeking repairs in their homes.
Public-housing repairs are seldom made in a timely manner.
Typically, CHA and property management become aware of conditions problems via
resident complaints or regular building inspections. Maintenance requests are
then logged in CHA’s system and categorized in terms of priority—emergency
issues must be abated within twenty-four hours, urgent issues within
forty-eight hours, and routine issues, which include general maintenance and
unscheduled preventative maintenance, are held to a less regimented schedule. Property
managers, however, often do not make repairs on these timeframes. Residents
feel that their requests disappear into a black hole. Sometimes they never
receive a response. A resident of Henry Horner Homes expressed frustration with
CHA, saying: “They don’t do nothing. We call them, I don’t how many times
(we’ve) called them.” Other times, maintenance
workers will visit their home to do an initial inspection of the problem
without following up to complete the work. The work orders might then get
marked as completed, even though no work had actually been done. Some residents
wait years for repairs and many eventually give up on making maintenance
requests, feeling that nothing will change.
When small issues are not addressed, they become big. At a
scattered-site building on the West Side, I saw how failing to regularly clean
“sump pumps,” which are designed to take water surrounding a building’s
foundation and pump it outside, can have disastrous effects. The sump pump at
the scattered-site building became clogged, causing recurring floods in the
basement unit for over five years. By the time I got in touch with the family
living there, the conditions were deplorable. The floors and walls in the unit
were damaged and covered in the most severe black mold that I have seen, posing
a grave health hazard. In another example, I visited a unit on the South Side
where a family’s kitchen ceiling had begun to buckle due to a leak. The
maintenance request they had placed months before my visit was marked as
complete, even though no work had been done. By the time of my visit, they had
placed a second request. The ceiling began to cave in a few weeks later. The
problem was fixed only after I presented a demand for repairs to the property
management staff.
Some developments struggle with persistent mold and pest
infestations that put families’ health at risk and necessitate systemic change
to maintenance practices. At Trumbull Park Homes, a low-rise development on the
far South Side with over four hundred units, I heard from nearly thirty
families who experienced recurring mold. Many of their children developed
asthma at a young age. Maintenance would typically come out to provide
surface-level fixes to the problem, often painting over the mold, which would
come back again the following year. Within the past several months, though, CHA
has taken larger-scale preventative measures to reduce moisture build-up by
replacing water boilers and vents. At another apartment complex in Bronzeville
with around three dozen units, nearly every resident deals with mouse
infestations. One new family caught several mice within weeks of moving into
their unit, before they had even fully unpacked. Housing advocates have
recommended that public-housing authorities address the root causes of problems
like mold and pests and follow up with residents to ensure long-term
improvements. This could
involve using photo or video evidence to confirm that the problems have been
fully abated.
CHA residents in mixed-income developments face unique
challenges. The mixed-income buildings typically are newer and appear nicer
than traditional public housing. This is especially true on the outside. Some
are located in racially diverse middle-class or affluent communities—take, for
example, the mixed-income developments in the Cabrini-Green area, where the
neighborhood has become dramatically whiter and more affluent over the past few
decades. The situation
inside mixed-income units, however, can be a different story. Repairs are
typically made more readily for privileged families who pay market-rate rents,
while the maintenance needs of CHA residents are ignored. CHA residents face
negative stereotypes and discrimination from higher-income, non-Black neighbors
and development professionals. Their exclusion is
compounded by the fact that they cannot meaningfully participate in the Condo
Owners’ Associations governing their developments, which often
means that their maintenance needs are further delayed and pushed to the side. As a result,
CHA residents often feel disempowered in mixed-income communities. Several of
the residents that I spoke with are also more hesitant to raise maintenance
complaints, even when the issues are severe, as they feel fortunate not to be
in the housing projects and fear retaliation from CHA and property management.
The high turnover in private management companies and lack of
CHA oversight seem to contribute to the prevalence of conditions problems. As
of 2024, the day-to-day operations and maintenance of most Chicago
public-housing units are managed by one of four companies: East Lake
Management, The Habitat Company, Hispanic Housing Development Corporation, and
Manage Chicago, Inc. These companies are among
the largest property-management firms that focus on affordable housing in the
Midwest. CHA typically
enters into multimillion-dollar contracts with these companies for a few years
at a time. During my
visits to public-housing developments, residents were frequently frustrated by
how work-order requests and other documents were lost in transitions between
property-management companies. As a result, problems in their buildings could
persist for years. Due to staff turnover, many residents also do not know with
whom they should communicate to resolve issues. They lose existing
relationships with property-management personnel when they change. This has
intensified mistrust of CHA. CHA has come under fire recently, as residents,
housing activists, and city aldermen alike have urged them to monitor the
management companies more closely.
Overall, CHA residents tend to have a fraught relationship
with property management. Maintenance requests are often ignored. Mold and
mouse infestations are recurring challenges in whole developments, adding to
the daily stressors of families in public housing and exacerbating health
conditions like asthma in young children. CHA families in mixed-income
developments face discrimination from their neighbors and development
professionals. High turnover in property-management staff creates further
distrust and leaves residents confused on where they should go for help.
Having an attorney who can visit public-housing units,
document the conditions problems, and send demand letters to CHA and property
management—with the threat to sue if repairs are not made in a timely
manner—can speed things up tremendously. However, not nearly enough housing
attorneys have the capacity to do this type of individualized advocacy
y to support the hundreds, and likely thousands, of residents
in need. More importantly, given how widespread conditions problems are and the
fact that issues like pest infestations, heat outages, and nonfunctioning
elevators implicate residents in entire buildings, we need a systematic
approach to tackling these issues.
II. the need for systemic advocacy to address
substandard public housing
This Part lays out the current legal landscape facing tenants
and housing lawyers. Section II.A will briefly discuss the legal protections
for low-income families living in substandard housing. The implied warranty of
habitability sets out the landlord’s obligation to maintain residential
buildings properly. Municipal building codes, antidiscrimination law, and tort
law also aim to ensure tenants have access to decent housing. Nonetheless,
these rights are often underenforced. Section II.B will explain the barriers
that low-income tenants, and especially those in public housing, face in
vindicating their rights. Residents’ fear of retaliation and the low penalties
for PHAs that fail to make necessary repairs limit the effectiveness of
approaching conditions problems on a case-by-case basis. Legal-aid attorneys
can be overwhelmed by large caseloads primarily focused on supporting residents
facing eviction and thus do not have the capacity to bring enough
individualized, affirmative conditions cases to address the scope of the
problem. Moreover, federal funding restrictions limit the tools legal-aid
organizations can use to engage in systemic advocacy.
A. Legal Protections for Tenants Living in
Substandard Housing
There are important legal protections for tenants living in
substandard housing. The tenants’ rights revolution of the 1960s and 1970s
pushed courts to read contract-law principles into tenant-landlord law. This led to
one of the key legal rights for renters: the implied warranty of habitability,
which provides that a tenant’s obligation to pay rent is dependent upon the
landlord properly maintaining the home in compliance with local building codes. If a
landlord fails to make necessary repairs in a timely manner, tenants may pay a
reduced rent in proportion with the reduced value of the home. This
innovation redistributed bargaining power to renters and aimed to improve
living conditions and combat urban blight in deindustrializing urban centers. Following the landmark case that
established the implied warranty of habitability, Javins v. First National
Realty Corp., legislatures and courts in
nearly every state have adopted this framework, applying it to public housing
as well.
Municipal building codes, antidiscrimination law, and tort
law also protect tenants living in substandard housing. For example,
the Cook County Residential Landlord Tenant Ordinance, enacted in 2021,
provides substantial protections for tenants living in substandard housing, in
addition to other protections against retaliation and illegal lockouts. Tenants have
successfully used disability law to challenge pervasive mold in public-housing
developments, arguing that the local housing authority’s failure to abate mold
and excessive moisture denies residents with asthma equal access to public
housing. Others have
brought negligence claims against PHAs, claiming that they failed to monitor
property-management companies and maintenance personnel adequately.
B. Barriers to Vindicating Low-Income Tenants’
Housing Rights
Unfortunately, however, low-income residents’ right to live
in properly maintained housing is often underenforced. Many families do not
bring affirmative complaints regarding housing conditions for fear of retaliation.
And the housing choices low-income families can afford are often limited. This is
especially true in public housing, where families pay income-based rent and
typically have nowhere else to go. Retaliation could mean being evicted from
one of their only options in the housing market, and it could force them to
live somewhere worse. Low-income families’ precarious situation makes them risk
averse and thus less likely to make complaints than high-income families. Moreover,
eviction actions, even if meritless, “can land a tenant on a private
‘blacklist,’ which landlords use to weed out applicants,” further barring
alternative housing opportunities. Many of the
CHA residents that I met feared that bringing complaints would prompt CHA to
scrutinize them, searching for lease violations or blaming the conditions on
tenants’ poor housekeeping.
Even when tenants bring meritorious complaints, they are
unlikely to receive rent abatements. When tenants
do get relief, the remedies are often insufficient deterrents to compel
landlords to maintain their buildings properly. From a purely economic
perspective, landlords are incentivized to maintain their units only if “the
cost of failing to do so exceeds the cost of repairs.” This cost
depends on the probability that a tenant will successfully assert their rights
offset by the building’s increased value after repairs.
If a tenant successfully raises a conditions complaint, rent
abatements are often too little to make a meaningful difference to landlords. Courts
tend to discount the rent by less than half, even in the most severe cases.
Public-housing residents pay an income-based rent, which is typically much
lower than market rate. Thousands of CHA residents are unemployed and survive
on Supplemental Nutrition Assistance Program or disability benefits, often
paying only $75 per month, the minimum flat rent, or $0 per month if they are
given a hardship exemption. Therefore, withholding
rent or receiving rent abatements can be futile, as the financial penalty is
not nearly enough to pressure PHAs to comply with building codes. Moreover,
because the penalty for failing to make repairs in public housing is so low, it
vastly undervalues low-income families’ suffering—the health risks and
psychological stresses of living in substandard housing. As a result,
many low-income families are never meaningfully compensated, nor do they expect
to be, which can discourage them from bringing complaints in the first place.
Taken together, residents’ fear of retaliation and the low
penalties on PHAs for failing to make necessary repairs limit the effectiveness
of approaching conditions problems on a case-by-case basis. Systemic advocacy
is thus necessary to change public-housing conditions meaningfully.
Legal-aid attorneys, who work directly with public-housing
residents and often have the best understanding of their living conditions, are
typically unable to bring affirmative conditions cases. Legal advocacy to
address conditions problems is primarily done in the context of eviction
defense. Tenants can
use the warranty of habitability as a defense in an eviction action for
non-payment of rent by claiming that the landlord’s failure to maintain their
home reduced the home’s value such that the rent should have been reduced. At
best, this can reduce the amount owed in an eviction action by about half.
Legal-aid lawyers have very limited capacity to bring affirmative conditions
cases, as they tend to be overwhelmed by eviction-defense cases. This is
especially true given the increase in right-to-counsel programs throughout the
country. Based on
conversations that I had with housing attorneys at Legal Aid Chicago during my
fellowship, for example, I learned that supporting residents facing eviction
now takes up the majority of the Housing Practice Group’s time. While it is
certainly right to prioritize keeping families housed, we also want to go a
step further and make sure that they have safe, decent homes to live in.
Legal-aid attorneys face barriers to engaging in systemic
advocacy. LSC, a nonprofit established by Congress, is the largest funder of
civil legal-aid organizations in the United States. LSC funds
over 130 organizations across all fifty states, including
Legal Aid Chicago (my fellowship host organization’s partner), the largest
provider of free civil legal services to people living in poverty in the
Midwest, and Legal
Services NYC, which serves more than 100,000 low-income New Yorkers annually. The Legal
Services Corporation Act stipulates that LSC-funded programs cannot engage in
political activities like funding political campaigns. In 1996,
Congress took these provisions a step further by restricting LSC-funded
programs from engaging in legislative advocacy and from pursuing class-action
lawsuits. This
severely limits the ability of legal-aid attorneys, who work directly with
low-income renters, typically on a case-by-case basis, to address substandard
housing in a systematic way.
III. moving forward: strategies to improve public
housing systematically
This Part considers advocacy strategies to make large-scale
improvements in the living conditions in public housing. As a first step,
attorneys can collaborate with resident councils to build relationships with
residents, gain insight into systemic housing problems, and work towards
improving conditions at public-housing developments. This approach is
particularly well suited for public housing, where each development may have
resident leadership councils protected under federal law. This Part then
considers class-action litigation strategy, highlighting an innovative example
of using disability law to address widespread mold in New York City’s public
housing. Finally, this Part argues that we should also look beyond litigation
and push for increased oversight of PHAs. Giving local governments the ability
to inspect public-housing developments proactively, monitor the handling of
residents’ maintenance requests, and issue fines on PHAs for building-code
violations could be a strong enforcement mechanism. To that end, this Part
examines a recent successful campaign to increase oversight of the Housing
Authority of the City of Milwaukee (HACM), and it shares models of city
ordinances that take a public-health approach to proactive housing inspections.
A. Collaborating with Resident Councils
Resident councils are an important feature of public housing.
They provide a means of organizing public-housing residents, allowing them to
come forward to present their complaints to PHAs and have a voice in the
decision-making process on public-housing matters. Through my fellowship, I learned
that collaborating with resident councils can be a great way for housing
attorneys to gain insight into the extent of conditions problems at
public-housing developments, develop relationships with and support resident
leaders, and identify plaintiffs for individual cases. Moreover, even
LSC-restricted legal-aid attorneys can represent resident councils, which
provides an opportunity to pursue impact litigation that could address
conditions problems affecting whole developments.
Resident councils are protected under federal law. They can
consist of residents living in a single public-housing property or within a
development area such as a scattered-site region, and there may even be
jurisdiction-wide resident councils that represent all residents served by a
single PHA. Chicago, for
example, has local advisory councils (LACs) at each development and then a
larger council—the Central Advisory Council, comprised of each LAC
president—that provides public-housing residents a voice with CHA at a
city-wide level. Residents vote to elect
leadership teams within their community at least once every three years. Resident
leaders establish Memoranda of Understanding with PHAs, communicate with PHAs
to address issues in their developments, and do other community-building
activities like host social events. HUD recently
even gave resident councils the ability to recommend public-housing units in their
developments for routine HUD inspections. HUD
encourages residents to participate in resident councils and has published
several guides with tips on how to utilize them effectively.
By collaborating with resident councils, attorneys can
develop important relationships within the public-housing community, gain
insight into the extent of conditions problems, and identify plaintiffs for
individual cases. Working with resident councils was essential to my fellowship
project. By attending LAC meetings around the city, I learned about conditions
problems at particular developments, built trust with resident leadership, was
able to share legal information with residents widely, and received a number of
referrals for individual advocacy cases. As discussed above, many
public-housing residents do not complain about problems for fear of
retaliation. Though it is illegal, PHAs may retaliate against individual
residents by, for example, fishing for lease violations that could lead to
adverse action or even eviction. It is much more difficult, however, to
retaliate against tens or even hundreds of residents who bring their demands
together. Indeed, during my fellowship, residents seemed more comfortable
bringing forward their complaints with the support of resident councils,
oftentimes sharing their stories alongside their local council presidents.
Despite the power of resident councils, there may come a
point where legal intervention is necessary to ensure that PHAs are responsive
to the needs of public-housing communities. Housing attorneys, including those
who work at LSC-funded organizations, may represent resident councils. The
Cabrini-Green LAC, which has been an organizational plaintiff in a few cases
against CHA over the past few decades, is a helpful example of what
representing a resident council could look like and how they may serve as a
proper plaintiff for conditions cases. In the late 1990s, the Cabrini-Green LAC
sued the CHA, alleging that the LAC was denied participation in the planning
process the Plan for Transformation, which entailed the demolition of the
Cabrini-Green high-rises. Whether or not the
Cabrini-Green LAC had proper standing as a plaintiff to bring the lawsuit
became a key question. An organization may have standing if (1) it has standing
in its own right due to injury to the organization, or (2) it alleges that its
members have been injured. The court found that the
Cabrini-Green LAC had standing on both grounds, as it was forced to divert its
resources to respond to and advocate against the Plan, and its membership comes
from public-housing residents who are affected by the CHA’s actions. The case
ultimately resulted in a consent decree in favor of the LAC. More recently,
in 2013, Legal Aid Chicago (then known as the Legal Assistance Foundation of
Metropolitan Chicago) represented the Cabrini-Green LAC in a lawsuit against
CHA to ensure that at least forty percent of the units at the redeveloped
buildings at the public housing site remained reserved for public-housing
residents.
The Cabrini-Green LAC litigation demonstrates how housing
attorneys, including those at legal-aid organizations, can support resident-led
advocacy for changes that impact whole public-housing developments. The
litigation empowered residents in decision-making processes with the CHA,
giving them greater influence in the redevelopment and preservation of
public-housing units. More broadly, this model of resident-council litigation
could also be used to amplify residents’ voices in regard to building
maintenance, helping them address widespread conditions problems and inadequate
maintenance policies and practices that trouble their housing complexes.
B. Pursuing Class-Action Litigation
Attorneys engaging in class actions should employ creative
strategies to address conditions problems. This Section highlights an
innovative example of using disability law in class-action litigation to
improve public-housing conditions in New York City. The case— Baez v. New York City Housing Authority—provides
a possible template for how advocates can use disability law to address mold
and other conditions problems that impact large numbers of public-housing
residents. Ultimately, it also demonstrates the need for continuing to apply
pressure to courts and PHAs, even after litigation wins, to ensure that
conditions meaningfully improve.
In December 2013, New York Housing Authority (NYCHA)
residents and two community-based organizations, Upper Manhattan Together and
South Bronx Churches Sponsoring Committee, brought a class-action lawsuit
against NYCHA to address widespread mold in the city’s public housing. NYCHA is
by far the largest PHA in North America, providing public housing for over
360,000 residents. One in seventeen New
Yorkers call NYCHA home. Due to decades of federal
disinvestment from public housing, NYCHA has fallen behind on addressing
residents’ maintenance needs, and there are more than $40 billion in major
repairs needed across the city’s public-housing stock. Many NYCHA
public-housing residents suffer from asthma, which is exacerbated by mildew,
moisture, and other allergens in their homes. One study
showed that asthma is nearly three times more prevalent among children in
NYCHA’s public-housing developments than among children who live in private
family dwellings in the city.
The Baez plaintiffs made a novel use of disability law
in the complaint, arguing that NYCHA’s failure to abate mold and excessive
moisture in their units and to provide reasonable accommodations to residents
with asthma denied them an “equal and meaningful opportunity to use, benefit
from, and enjoy public housing.” This denial,
they argued, violated the Americans with Disabilities Act (ADA), Section 504 of
the Rehabilitation Act, the Fair Housing Act, and New York State’s Human Rights
Law. By April
2014, the parties settled. The settlement required NYCHA to respond to mold
complaints more promptly—by remediating simple mold problems within seven days
and more complex mold problems within fifteen days—and improve its handling of
disability-accommodations requests.
Initially, NYCHA was far from completing repairs on schedule
and, because their repairs were largely cosmetic fixes that did not address the
root causes of mold, the mold often recurred. In response,
the organizational plaintiffs set up three legal clinics across the city, where
they advised NYCHA residents on the settlement terms and assisted them in
filing hundreds of public comment letters to the court detailing the city’s
continued mishandling of mold. This led to new strategies for
improvement. The court appointed an ombudsperson who helps residents navigate
government bureaucracy and get mold problems addressed. NYCHA’s information technology department
developed an app called Mold Busters to assist property maintenance supervisors
with conducting inspections, identifying root causes of mold, selecting
appropriate remediation methods, and generating work orders. NYCHA also
improved air circulation and reduced moisture buildup in bathrooms by replacing
eighty percent of its old fans and mechanical exhaust systems. As a result,
the rate of mold recurrence dropped from forty percent in 2019 to just fourteen
percent in 2023.
Baez provides an important example of how advocates
can use disability law to fight for better public-housing conditions. Given the
disproportionately high rates of asthma across low-income communities, and
especially those with high concentrations of public housing, attorneys could
employ similar strategies to address widespread mold. Beyond mold,
advocates can also use disability law to address a variety of conditions
problems effecting whole developments. Public-housing residents at the Mayor
Wright Homes in Hawaii, for example, successfully brought a disability
class-action lawsuit, in which they argued that issues such as lack of hot
water exacerbated residents’ medical conditions, including chronic pain and
heart disease. Advocates could also use
disability law to address serious mobility concerns in Chicago’s public
housing. For example, broken elevators pose an accessibility barrier to
mobility-limited residents, many of whom live in high-rises for seniors.
Baez also underscores the importance of continuing to
apply pressure on courts and PHAs to achieve results. Winning in court is only
half the battle. Enforcement is tricky. Baez shows how we can remain
connected with public-housing communities, empower residents to share their
stories of persisting conditions problems on the ground, and create a sense of
urgency, even after settlement. Indeed, this could be helpful lesson in
Chicago, where consent decrees alone have been insufficient to enforce CHA’s
obligation to maintain its public-housing developments in good condition.
C. Increasing Local-Government Oversight of PHAs
Ultimately, lawyers and housing advocates should also look
beyond litigation and push for increased local-government oversight over PHAs.
Local governments are well-positioned to add an additional layer of oversight
to PHAs and serve as an alternative enforcement mechanism to the courts. To
explore this possibility, this Section will examine Common Ground, a Wisconsin
advocacy coalition that waged a successful campaign to bring Milwaukee’s public
housing under the oversight of the local government. The group’s success is a
case study in how housing advocates can garner support from their city council
and then use existing local-government infrastructure to increase transparency
and accountability in public-housing systems. This Section will conclude with a
brief discussion of how cities can take a public-health-informed approach to
proactive inspections of rental properties, including public housing.
In 2020, a broad-based coalition of faith groups, businesses,
and community organizations called Common Ground began a campaign to reform
HACM. HACM is the second largest landlord in Milwaukee, Wisconsin, with over
4,000 public-housing or subsidized units and 6,000 Section 8 voucher
households. Since its beginning in 1944, HACM’s
board has been appointed by the Mayor of Milwaukee and approved by the Common
Council (Milwaukee’s city council). Like most
PHAs throughout the country, HACM, up until 2024, was only subject to HUD
regulations and not the oversight of local government. In response to growing
complaints on public-housing conditions and HACM mismanagement, Milwaukee
activists pointed to a key problem with HUD’s oversight—it is typically
inadequate. While HUD
oversees PHAs across the nation, it lacks sufficient power to compel PHAs to
improve. HUD often gives passing inspection scores to public-housing
developments in poor condition and does not refer troubled PHAs for national
intervention, as required by law.
In response to these failures, Common Ground demanded an
investigation into HACM, a replacement of the leadership, and increased
local-government oversight. Common Ground conducted
extensive community outreach, holding listening sessions with public-housing
residents, identifying and supporting resident leaders in making improvements
at each development, and building relationships with city alders. In total, Common Ground spoke to
over 1,700 HACM residents across the city to understand the extent of the
problems and collect stories. In 2023, Common Ground
presented to the Common Council more than 1,000 cases of residents who had
experienced a range of issues, including assault, bed bugs, rats, mold, no
heat, lost rent payments, and abusive management. The campaign
also leveraged media pressure on HACM and led one of the largest demonstrations
of public-housing residents in Milwaukee history.
By the end of 2023, the Milwaukee Common Council voted to put
HACM under the oversight of the Department of Neighborhood Services (DNS),
which is the city agency that already enforces building codes for privately
owned housing. Under the new regime, DNS will have
the power to inspect HACM properties and issue fees for code violations. Common Council also dedicated
$120,000 to create two new positions in DNS to oversee HACM buildings. Common
Council members expect that inspection fees will cover the long-term cost of
the inspectors. They also designated
$250,000 in the 2024 budget to help HACM address the backlog of maintenance
requests. In addition,
HACM will roll out a new online service via RENTCafe, which will increase
transparency in the maintenance process by allowing residents to monitor the
status of their requests.
While the long-term impact of bringing HACM under
local-government oversight has yet to be seen, Common Ground’s victory is a
historic win that can inform strategies for public-housing reform across the
country. The campaign demonstrates how housing advocates can find allies in
city council members, who inherently have a stake in public-housing
developments in their wards and are answerable to the hundreds, or even
thousands, of constituents. By presenting the stories of HACM residents and
leveraging media pressure, Common Ground successfully brought the often-unseen
realities of life in public housing to the attention of Milwaukee’s city
council. This approach could be particularly productive in cities where there
is growing public dissatisfaction with public-housing conditions, like Chicago. Moreover,
Milwaukee is an example of how cities can utilize existing local-government
infrastructure to regulate PHAs. Many local governments may already have
departments that regulate conditions in privately owned housing, focusing on
their quality, neighborhood services, or public health. By expanding the scope
of these departments to include public housing, cities can improve PHA’s
transparency and accountability.
Similarly, a growing movement of housing and public-health
advocates across the United States are pushing for city governments to conduct
regular, proactive inspections of rental properties. These advocates recognize
the important links between housing quality and health outcomes. Giving city
governments the ability to inspect and issue fines on rental properties,
including public-housing units, could help enforce local building codes. Many
cities still rely on complaint-based inspection systems, which discourage
low-income families and undocumented families from speaking up about
problematic conditions in their homes. Making these
inspections proactive, rather than merely reactive to resident complaints,
could lead to stronger enforcement without residents fearing retaliation.
ChangeLab Solutions, for example, has developed model city ordinances which
build on pilot programs throughout the country. Advocates
may use these model ordinances as inspiration as they consider what is feasible
for their unique locations. Advocates in larger cities like Chicago may find
that it is more sensible to pilot an inspection program in a few neighborhoods
before scaling up to the rest of the city. As in Milwaukee, advocates may also
want to consider how such a program could be best rolled out given their unique
local-government infrastructure.
Conclusion
Despite the many challenges that this Essay identifies, there
are a range of tools and strategies available to housing advocates who are
working to make the changes that our public-housing communities need and deserve.
Chicago offers a compelling case study for understanding the transformation of
public housing in the United States and how we might move forward. In many
ways, the Chicago story is not unique. Public-housing communities around the
country are grappling with legacies of racial segregation and concentrated
poverty and the present-day realities of underfunding and substandard living
conditions.
Ultimately, this Essay aims to be useful to housing
advocates. Oftentimes, this work can feel like an uphill battle. While it is
important to diagnose the problem, it is equally important that we share our
strategies and successes. During my fellowship, I learned the importance of working
closely with public-housing residents to develop strategies to address the issues
that affect them. The approaches that this Essay puts forward—deepening our
collaboration with resident councils, pursuing innovative class-action lawsuits
to address widespread conditions problems, and increasing local-government
oversight of PHAs—will hopefully serve as productive contributions to an
ongoing conversation.
Thank you to my colleagues at Legal Action Chicago for
your support during my fellowship—in particular, Lawrence Wood, for always offering your guidance and expertise—and to Legal Aid Chicago’s Housing Practice Group. Thank you to the Housing Justice Network for creating a welcoming and collaborative community of housing advocates. A special thank you to the
Central Advisory Council, the resident leaders, and the many CHA families that
I worked with this past year for your time, trust, and openness. Finally, thank
you to the editors at the Yale Law Journal, who made this Essay
possible.