Housing Evictions, Human Rights, and the Convention on the Elimination of Racial Discrimination

Patrick Leisure

The COVID-19 pandemic has starkly highlighted the magnitude of the eviction crisis facing many tenants in the United States.^[1] Troublingly, recent research shows the eviction crisis largely falls along racial lines. One study illustrated that “people of color, particularly black and latinx people, constitute approximately 80% of people facing eviction.”^[2] Another revealed that, controlling for education, Black households are more than twice as likely to be evicted than White households.^[3] This research is not only deeply concerning from a societal perspective, it is also illustrative of a wider human rights failure in the United States. This Viewpoint discusses the intersectionality between discrimination, housing, and human rights from the perspective of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Soaring eviction rates that disproportionately affect minority groups are a multi-layered human rights problem. The right to health and the right to shelter are longstanding and widely recognized basic human rights.^[4] The right to shelter, in addition to being a freestanding human right, is a constitutive element of “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”^[5] In other words, without basic shelter, a human being faces a gale force headwind battering down their ability to exercise their right to health. Emergency situations, like those associated with COVID-19, highlight the dreadfully stark implications of the interconnected nature of these human rights. How might one quarantine without a home?

Eviction is defined as “the forced removal from one’s home” generally due to the inability to pay rent.^[6] During the COVID-19 pandemic, for myriad reasons including job loss, inability to work, quarantine measures, and general economic hardship, the number of renters facing eviction in the United States has rocketed.^[7] These evictions are disproportionately experienced by minority households. Health and housing expert Emily Benfer stated, “you cannot talk about housing justice without talking about racial justice, and that is true as well with the eviction crisis that is currently happening.”^[8] Although eviction data are challenging to find, a study by the University of Washington suggests eviction rates among Black and Latinx adults in some cities are nearly seven times higher than for their White counterparts.^[9] According to records of the Boston Housing Court, “78 percent of eviction cases in Boston that were suspended due to COVID-19 were in communities of color.”^[10]

The disproportionate impact on communities of color reflects longstanding, historically rooted systemic discrimination against minority groups. Laws are only a small part of the problem. The eviction crisis magnifies both pre-existing structural inequalities in the United States as well as de facto discrimination practices that laws do not necessarily explicitly forbid. Disparate homeownership rates along racial lines and the disproportionate impact of COVID-19 on minority communities simply exacerbate a social problem.^[11] The existence of anti-discrimination legislation in housing, primarily in the Fair Housing Act, makes it, at the very least, difficult to point to any overtly discriminatory laws that may have led to the racial eviction disparity. In eviction cases, as opposed to other aspects of housing law, proving discrimination is astoundingly difficult, though some statistical research has shown discriminatory eviction practices.^[12] Despite the inherent complexities in making such a determination, the ICERD has a mechanism that could reduce the knowledge and accountability gap currently in place.

Broadly, the ICERD, one of the few human rights treaties that the United States has ratified, illustrates the nexus between human rights, access to housing, and discrimination. Article 5 of the convention specifically enumerates certain rights that state parties undertake to guarantee, without distinction as to race, color, or national or ethnic origin, including the right to housing and the right to public health.^[13] Concretely, this means that state parties to the Convention should review policies and regulations at various levels of government and amend those that create or perpetuate racial discrimination.^[14] A strong argument exists that the United States has not reviewed policies at different levels of government that have the effect of perpetuating racial discrimination in the housing market, specifically the disproportionate effect of evictions on minority groups. Moreover, the ICERD allows any other state party to the Convention to bring the matter to the attention of the Committee on the Elimination of Racial Discrimination (CERD), which then, in-turn, requires the receiving state (that is, the United States) to issue written explanations or statements clarifying the matter. Thereafter, depending on the result, further investigation and calls for relevant information may take place at the request of the CERD. This may result in the Committee issuing a report.

This process, while certainly an imperfect solution to the imminent threat to basic human rights facing many US tenants, as well as the discriminatory impact of these evictions, nonetheless offers some advantages. There is currently a large transparency gap in evictions data. At a minimum, forcing the United States to honour its ICERD obligations would require the country to start collecting and documenting data on eviction-related discrimination. Secondly, an eventual report issued by the CERD on this issue could draw attention to the problem, both “naming and shaming” the United States and acting as persuasive law in court eviction decisions. Finally, drawing international attention to the country’s human rights failings might serve as a catalyst for a close review of the laws and legal processes surrounding housing discrimination and eviction. It might initiate a more in-depth national and international conversation about what future administrations can do to ensure non-discriminatory processes surrounding evictions, while seeking to preserve human rights to housing, health, and dignity during crises.

Patrick Leisure, JD, LLM, is a research fellow at Masaryk University, Faculty of Law in Brno, Czech Republic. Email: patrick.leisure@law.muni.cz

References

[1] A. Holpuch, “‘I am beside myself’: millions in the US face evictions amid looming crisis”, The Guardian (August 25, 2020). Available at https://www.theguardian.com/world/2020/aug/25/millions-of-americans-face-evictions-crisis.

[2] E. Benfer, D. Bloom Robinson, S. Butler, L. Edmonds, et al., “The COVID-19 Eviction Crisis: an Estimated 30-40 Million People in America Are at Risk”, The Aspen Institute (August 7, 2020). Available at https://www.aspeninstitute.org/blog-posts/the-covid-19-eviction-crisis-an-estimated-30-40-million-people-in-america-are-at-risk/.

[3] Ibid.

[4] Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III) (1948), Art. 25. Available at http://www.un.org/Overview/rights.html.

[5] International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), Art. 12. (1966). Available at http://www2.ohchr.org/english/law/cescr.htm.

[6] D. Greenberg, C. Gershenson, and M. Desmond, “Discrimination in Evictions: Empirical Evidence and Legal Challenges”, Harvard Civil Rights-Civil Liberties Law Review 51 (2016) p. 116.

[7] Holpuch (see note 1).

[8] American Bar Association, The Impending Eviction Crisis: Housing as Health Care and Racial Justice, June 25, 2020, Webinar, https://www.americanbar.org/groups/crsj/events_cle/program-archive/the-impending-eviction-crisis/.

[9] K. Eckhart, “University of Washington Study reveals gender and racial disparities in evictions”, UW News, (February 10, 2020). Available at https://www.washington.edu/news/2020/02/10/uw-study-reveals-gender-racial-disparities-in-evictions/.

[10] D. Robinson and J. Steil, “Evictions in Boston: The Disproportionate Effect on Communities of Color”, 2020, City Life/Vida Urbana. Available at http://www.clvu.org/boston_evictions_report_2020

[11] See, for example, A. Chapman, “Ameliorating COVID-19’s Disproportionate Impact on Minority Communities: Proposed Policy Initiatives in the United States”, Health and Human Rights Journal (October 12, 2020). Available at https://www.hhrjournal.org/2020/10/ameliorating-covid-19s-disproportionate-impact-on-black-and-hispanic-communities-proposed-policy-initiatives-for-the-united-states/

[12] Greenberg (see note 6), p. 121.

[13] International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX), Art. 5 (1965). Available at http://www2.ohchr.org/english/bodies/ratification/2.htm.

[14] Ibid., Art. 2(c).