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In the face of federal inability to effectively police national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things. This article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. However, given the difficulty of ascertaining legal status, landlords are instead likely to resort to short-cuts, such as refusing to rent to "foreign-seeming" people and discriminating based on accent, surname, appearance, or other ethnic markers. Federal intervention is therefore necessary. Congress must act to prevent municipalities from enacting and enforcing such restrictions. Moreover, Congress must itself resist pressure to enact immigration-related housing restrictions as a matter of national policy. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status.

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Asking landlords to enforce immigration laws makes about as much sense as requiring grocers to demand a green card before selling a gallon of milk.

-Editorial, CHI. TRIB., OCT. 16, 2006(1)

INTRODUCTION

In recent years, few topics have been as controversial and polarizing as illegal immigration. Federal efforts at policing the border between the United States and Mexico are widely regarded as ineffectual, and efforts to locate and deport unauthorized immigrants have scarcely made a dent in the population of approximately 12 million estimated to be living in the United States.2 In the wake of these failures, attempts at local and private enforcement of immigration laws have proliferated.3 Many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("All") ordinances. These ordinances typically contain a combination of provisions: they make English the "official language" of the municipality, eliminate gathering places for day laborers, penalize employers for hiring unauthorized immigrants, restrict unauthorized immigrants' access to public benefits, and prevent unauthorized immigrants from renting housing.4

Attempts by subnational governments to pass such measures have received much attention in the scholarly literature, primarily because of the questions they raise about the appropriate allocation of immigration enforcement authority between federal, state, and local governments.5 Most of the treatment, however, fails to engage in a substantive analysis of the provisions themselves; to the extent it does, it tends to lump the individual provisions of the All measures together.6 Nonetheless, the various areas implicated by All ordinances - housing, employment, public assembly, public benefits, and municipal administration - operate within different legal frameworks and raise different sets of concerns.

This Article focuses on All provisions targeted at private rental housing, which typically sanction landlords who rent to unauthorized immigrants and may also require that all prospective tenants have their immigration status verified prior to entering into a residential lease. My analysis reveals that it is difficult (if not impossible) for landlords to verify the immigration status of every potential tenant they encounter. They are instead likely to resort to shortcuts, such as discriminating based on accent, surname, appearance, or other ethnic markers. As a result, I argue that these restrictions: (1) will cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin and (2) will lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of immigration or citizenship status. Although fair housing laws frequently pit landlords against tenants, in this situation the interests of the two groups are aligned: national origin minorities do not wish to be discriminated against, and landlords do not wish to be put in the untenable position of attempting to comply with All ordinances that put them at risk of violating the Fair Housing Act.

In addition to the likelihood that All ordinances will result in violations of federal fair housing law, there are also significant public policy arguments against immigration-related housing restrictions. These rights-oriented and practical arguments stem from the importance of housing, the nature of the landlord-tenant relationship, the ways in which the results of All housing measures will conflict with the measures' stated goals, and the unique harms that housing discrimination creates.

Because of these problems, I conclude that federal intervention is necessary. To protect national origin minorities and other legally present noncitizens from housing discrimination, and to keep landlords in compliance with fair housing law, Congress must act to prevent municipalities from enacting and enforcing such restrictions. Further, given the policy problems inherent in immigration-related housing restrictions, Congress itself must resist pressure to enact them into federal law.

But this is not enough. Historic and current levels of housing discrimination-both private and municipal-against national origin minorities and immigrants indicate that these groups are already in need of greater protection. Yet the law contains significant gaps in coverage that can prevent these groups from obtaining equal access to housing. Both alienage (whether a person is a citizen of the United States) and legal status (whether a person is legally present in the United States, and, if so, under what conditions) remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, landlords may attempt to take immigration enforcement into their own hands by refusing to rent to people who they believe to be unauthorized immigrants, or whose legal status they deem insufficient. This will invariably lead to continued discrimination against "foreign-seeming" national origin minorities (regardless of their citizenship) and legally present noncitizens. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status. Put another way, not only should private landlords not be forced to consider these factors when renting housing, they should in fact be prevented from taking them into account.

Part I discusses the All ordinances generally in terms of their history, housing contents, and current status. Part II analyzes the probable effects of the housing provisions and how these outcomes violate the Fair Housing Act. Part III addresses additional public policy arguments against All housing restrictions. Part IV offers suggestions for how the law can address the situation, both in terms of counteracting the All ordinances and in terms of more proactive reforms to protect national origin minorities who are citizens and legally present noncitizens from housing discrimination.

I. The All Ordinances

A. Background

The first of the contemporary crop of municipal All ordinances was proposed in April 2006, in San Bernardino, California.7 The ordinance's housing provisions were brief:

Illegal aliens are prohibited from leasing or renting property. Any property owner/renter/tenant/lessee in control of property, who allows an illegal alien to use, rent or lease their property shall be in violation of this section, irrespective of such person's intent, knowledge or negligence, said violation hereby being expressly declared a strict liability offense.8

Violation of the ordinance was punishable by a fine of not less than $1,000 per day. The ordinance failed on a four to three council vote, and supporters subsequently unsuccessfully fought to have it placed on the ballot for a popular vote.9 A few months after the San Bernardino measure failed, Hazleton, Pennsylvania became the first municipality to actually adopt an All ordinance.10 Hazleton's ordinance is much longer and more detailed than the San Bernardino measure, and its language became the model upon which most subsequent ordinances were based.

As of this writing, aproximately 105 localities in twenty-nine states have considered Hazleton- style All ordinances.11 Of these localities, forty-two have passed All ordinances containing housing restrictions. Six of these housing ordinances have been challenged in court from: Hazleton; Valley Park, Missouri; Farmers Branch, Texas; Cherokee County, Georgia; Escondido, California; and Riverside, New Jersey.12 Enforcement of all All ordinances was essentially put "on hold" pending the outcome of litigation over Hazleton's ordinance in the case oí Lozano v. City of Hazleton.13 The suit was widely viewed as a test case for these types of laws.14 On July 26, 2007, the Middle District of Pennsylvania struck down Hazleton's ordinance on a variety of grounds, most of them related to federal preemption and due process concerns.15 As a result, most of the housing All ordinances have either been enjoined by courts or repealed by local legislatures.16 For reasons discussed, infra, however, it is likely that we have not seen the last of local attempts to institute immigration-related housing restrictions.

B. Housing Provisions

The housing provisions in each Hazleton- style ordinance were enacted under the municipalities' zoning and code enforcement power. The housing provisions typically contain two basic components: (1) an enforcement procedure that relies on outside complaints and landlord sanctions and (2) a pre-authorization procedure requiring all prospective tenants to be screened for legal status before they can enter into a lease agreement.

1. Complaint-Driven Enforcement Procedures

Most of the municipalities rely on a complaint mechanism to enforce their ordinances. The complaint mechanism allows anyone to file a complaint with the municipality stating that he suspects a resident of a dwelling unit is an unauthorized immigrant. Hazleton's ordinance, for example, provides that:

An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any official, business entity or resident of the City. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the action constituting the violation, and the date and location where such actions occurred.

Once the enforcement office receives a complaint, the city notifies the landlord, who then has a matter of days to provide the city with identifying information about the particular resident.18 The city forwards this information to the federal government to verify the resident's immigration status.19 If the city learns that the resident is not legally authorized to be in the United States, it will inform the landlord, who then has a relatively short period - typically a few days - to cure the violation by convincing the resident to leave the unit voluntarily or by instituting an eviction action.20 If a landlord must undertake formal eviction procedures, the landlord will bear the court and administrative costs himself, which typically run around $200 per eviction.

If the landlord fails to remove or take steps to remove the resident within the allotted time, his rental license for the unit will be suspended and he will be prevented from collecting rent.21 Significant fines are imposed for each separate subsequent violation.22 A separate violation occurs each day that an unauthorized adult remains in the unit, and for each such individual in the unit, starting on the day after the landlord receives the violation notice.23 A separate violation also occurs each day beyond the allotted time that the landlord fails to provide identifying data for a resident after a request from the Code Enforcement Office.24 A few municipalities also allow incarceration as a potential penalty.25

Most Hazleton- style All ordinances contain a "safe harbor" provision for the landlord. Upon the landlord's own initiative (i.e., not in response to a complaint) the landlord may seek verification of any tenant's or prospective tenant's immigration status.26 The landlord does so by providing the city with information about a tenant or applicant. The city contacts the federal government, which carries out the verification in the same way that it does in response to a complaint.27 If a person's immigration status is verified as lawful, this will shield the landlord from future liability with respect to that tenant (if, for example, the tenant's status later changes to unauthorized, or if the initial verification was incorrect).

2. Pre-authorization

Some All ordinances require registration or "pre-authorization" before individuals can even enter into a residential lease. For example, under Valley Park's ordinance, landlords must apply to the City for an occupancy permit each time they rent out a unit and when the proposed occupancy of a unit changes.28 The application requires the landlord to set forth the "names, ages, citizenships, and relationships" of each proposed resident, as well as additional "identifying information that shall be required by the City."29 If any prospective tenant is a noncitizen, the city will verify with the federal government whether that person is lawfully present in the United States before it will issue an occupancy permit.30

Under Hazleton's ordinance, the prospective tenants themselves are required to apply to the city for an occupancy permit for each person who will reside in the dwelling.31 Applicants must provide "proper identification showing proof of legal citizenship and/or residency."32 This part of the statute does not contain a procedure by which the city verifies the person's status with the federal government, and it is not clear whether city employees will make some determination about the applicant's legal status.38

The Farmers Branch ordinance mandates that landlords "require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status."34 It further prohibits landlords "from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status."35 The statute does not specify who evaluates this evidence and makes the final decision as to whether a person's immigration status is sufficient to allow rental, though it appears these decisions are left to the landlord.36

Under all pre-authorization provisions, if a landlord rents to a person who does not have an occupancy permit, he is subject to fines that can accrue rapidly.37

C. Preemption: Hazleton and Beyond

The few courts that have ruled on All ordinances have struck the housing provisions down on either federal or state preemption grounds.38 The most significant opinion thus far has been Hazleton, in which the court struck down Hazleton's All housing provisions on federal conflict preemption grounds.

Because federal law is largely silent on how immigration status affects housing, the Hazleton court first determined that statutory field preemption was not applicable to immigration-related housing restrictions.39 The only provision of federal immigration law that even tangentially relates to housing is the "harboring" provision, which penalizes any person who "knowing or in reckless disregard of the fact that an alien has come to, entered, or remained in the United States in violation of the law, conceals, harbors, or shields from detection . . . such alien in any place, including any building . . . ."40 It is not at all clear that the term "harboring" - which implies both an intent to help a person hide from authorities and an intent to help a person remain in the United States - is meant to apply to landlords who simply rent out apartments.41 The courts have split on the issue of what constitutes harboring,42 although as Huyen Pham points out, in every case where this question was presented, the defendant had more connection with the illegal immigrants than merely providing housing to them in a typical landlord-tenant relationship.43 Although the federal courts have all interpreted the "harboring" provision in a manner that probably does not cover the landlord-tenant relationship, all of the All ordinances incorporated the "harboring" language from the federal statute into their housing provisions, and each defined the term to include renting an apartment to an unauthorized person.44 For example, Escondido's ordinance defined "harboring" to include "to let, lease, or rent a dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law."45

With field preemption unavailing, the Hazleton court next looked to conflict preemption, and it found that this doctrine is applicable to immigration-related housing restrictions.46 It determined that Hazleton's ordinance conflicted with federal immigration law in its assumption that all people who lack documentation of their legal status have no right or ability to remain in the United States (and by extension, in Hazleton). The reality, the court noted, is much more complicated. First, someone who clearly seems to be an "illegal alien" - a person who knowingly entered the country without legal permission or who remains in the country after legal permission expires - is only deportable if and when an immigration law judge issues a deportation order after a formal hearing.47 There are also a number of circumstances under which persons can be technically out of status (i.e., without documents proving they have permission to be in the United States) but still be permitted to stay in the United States.48 Finally, there are circumstances under which a judge may find that a person who is deportable may nonetheless remain in the United States.49

Therefore, the court concluded that the ordinance, which required landlords and code enforcement offices to deny housing to anyone who could not produce documentary evidence of legal status, conflicted with federal law requiring immigration law judges or the Attorney General to make individualized status determinations.50 Thus, the ordinance was conflict preempted and was struck down.51

The Northern District Court of Texas in Villas at Parkside Partners v. City of Farmers Branch,52 in contrast, did not reach the issue of field versus conflict preemption. Instead, it decided the case based on the odd drafting of the Farmers Branch All ordinance.53 The Farmers Branch ordinance incorporated the legal status restrictions used by the Department of Housing and Urban Development ("HUD") to determine eligibility for federal housing assistance.54 Essentially, Farmers Branch required landlords to deny housing to anyone who would not, for legal status purposes, be able to receive federal housing subsidies.55 Because there are several categories of noncitizens who may be legally present in the United States yet ineligible for federal housing assistance (such as tourists, workers, students, and diplomats), the ordinance effectively substituted a different scheme for determining the "conditions under which a legal entrant may remain" in the United States by preventing such individuals from residing in Farmers Branch.56 In addition, the court found that the ordinance placed responsibility for the determination of immigration status with landlords, who were likely to make ad hoc judgments, instead of with immigration authorities, who would conform to the federal immigration scheme.57 Thus, the court determined that the Farmers Branch ordinance likely constituted an impermissible "regulation of immigration" in violation of the rule set forth by the Supreme Court in De Canas v. Bica58 and permanently enjoined enforcement of the ordinance.59

Although it is tempting for immigrant rights advocates to take solace in these two district court opinions and assume that preemption doctrine will thwart further municipal attempts at passing All housing ordinances, preemption is a risky and unsatisfying approach for several reasons. First, there is no guarantee that future courts will find these ordinances preempted. The Farmers Branch ruling appears to be limited to its facts,60 and it is entirely possible that future courts will break with Hazleton and find that local All housing provisions are not preempted at all.61 Express field preemption is clearly out of the question given the absence of federal law on immigration-related housing restrictions. Implied field preemption is also problematic because while the power to regulate immigration has historically been a federal prerogative, states and municipalities have long been recognized to possess the authority to regulate housing as part of their police power.62 This power, with some limits, enables municipalities to regulate the identities of who can reside in rental housing. For example, zoning laws that restrict occupancy of certain areas to "single families" have been consistently upheld, so long as "family" is not defined in an overly restrictive way.63

In order for conflict preemption to be appropriate, there must be an "impossibility of dual compliance"64 with both state and federal law. Impossibility of dual compliance may not be the case with All housing provisions. For instance, a court may determine that All ordinances do nothing more than place the burden on noncitizens to prove their legal status. Currently, any noncitizen who lacks documentation of her legal status is subject to arrest and detention by federal immigration authorities until her status can be determined. If she lacks status, her deportability is adjudicated. So, the argument might go, the All ordinances merely target people who already have the burden of proving that they are legally present under the federal scheme. The All ordinances do not grant noncitizens the ability to remain in the United States or require their deportation; they merely prevent such individuals from entering into a lease until their status is determined.65

Moreover, whether because of political gridlock, the complexity of the issue, or the enormity of the problem, the federal government has not effectively prevented unauthorized people from entering the country or removed those who do. Meanwhile, local communities are faced with the practical task of absorbing influxes of immigrants, legal and otherwise.66 The community's housing stock, schools, workplaces, and hospitals are directly affected by such demographic changes. As a result, local governments will invariably continue to take action - in ways that may be either pro- or anti-immigrant. In light of this reality, it is unsatisfying to dismiss these attempts as being outside the constitutional scope of their powers.67

Even if courts deem the area preempted on a state level, it is quite possible that there will be a move at the federal level to empower (or require) subnational governments or individual landlords to implement or enforce All housing measures.68 Peter Spiro argues that if state and local governments are prevented from dealing with immigration-related issues, they will turn to the federal government to effect change on the national stage.69

There are several ways this could happen. Congress could pass legislation giving individual landlords a role to play, as it did with employers under the Immigration Reform and Control Act of 1986 ("IRCA"),70 which provided for sanctions against employers who employ individuals who are not work authorized. Congress could also pass legislation giving states leeway to act within defined parameters, as it currently does with welfare benefits under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), which authorizes states to determine noncitizen eligibility for federal and state-funded benefit programs.71

Alternately, Congress may create cooperative agreements between federal authorities and local code enforcement officials. These agreements would be similar to the so-called "287(g) agreements" created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("HRIRA").72 Under section 287(g), the Secretary of Homeland Security can enter into agreements with state and local law enforcement agencies to enforce federal immigration laws; federal officials train and supervise municipal employees, who are then authorized to investigate immigration cases and arrest and detain individuals for violations.73

In light of these very real possibilities, scholars and advocates should move beyond a narrow focus on preemption as a way to defeat AII ordinances and instead analyze the substantive issues raised by these ordinances. This inquiry, as I approach it for the housing provisions, contains two components: First, if such ordinances are enforced, what are the likely results, and how might these results conflict with federal housing discrimination law? Second, regardless of whether specific federal law violations result, are AII housing measures sound as a matter of public policy?

II. PROBABLE RESULTS OF ALL HOUSING ORDINANCES

A. Multiple Groups Likely to Be Affected

AII housing measures present a strong likelihood of discrimination against all national origin minorities, regardless of citizenship or legal status. This is due in part to the slippery nature of national origin as a legal concept and how it relates to perceptions of "foreignness." National origin is a protected characteristic in most civil rights statutes and constitutes a suspect class worthy of strict scrutiny in Equal Protection jurisprudence.74 The Supreme Court has defined national origin as "the country where a person was born, or, more broadly, the country from which his or her ancestors came."75 National origin, therefore, need not refer to the country from which the individual in question recently immigrated. It can also refer to ancestry, although it is not at all clear how far back this ancestry can or must be traced,76 or what happens if a person's ancestors have emigrated more than once.

It seems clear that when most people speak of national origin, what they mean is ethnicity, which refers to physical and cultural characteristics that make a social group distinctive, either in group members' eyes or in the view of outsiders.77 Without access to a person's birth certificate or family tree, it is impossible to know with certainty what country she or her ancestors come from. Instead we rely on ethnic markers such as language, accent, surname, cultural and religious practices, and race or "ethnic appearance" (itself a difficult to define term) to identify a person with a particular region of the world. Thus, national origin discrimination is less likely to consist of discrimination motivated by the fact that a person or her ancestors came from a particular country, and it is much more likely to consist of discrimination based on ethnic characteristics with regional associations.78 Juan Perea uses a particularly apt term, "manifest ethnicity," to describe people whose appearance, accents, or other observable traits identify them with a particular country or region.79 In this Article, I will use the terms "national origin minorities" and "ethnic minorities" to refer to individuals of manifest ethnicity.

National origin minorities, even those who are citizens and whose families have been living in the United States for generations, are still commonly perceived as foreigners.80 Poll data show that people overestimate dramatically the likelihood that Latinos who live in the United States are here illegally.81 Anecdotal evidence demonstrates that even police officers and government officials may assume wrongly that Latinos are both foreign and undocumented.82

This tendency to engage in stereotyping and make erroneous assumptions about ethnic minorities may in fact be hardwired into our cognitive processes. Social psychologists have long observed the human tendency to categorize other people into groups and to make assumptions about individuals based on their "group membership."83 These group-based stereotypes are absorbed typically during childhood and reinforced by social and cultural influences throughout a person's life.84 Individuals tend to make stronger stereotyped assumptions about group outsiders, and people (predictably) tend to assess members of their own group more favorably.85 People also tend to remember information that conforms to these stereotypes and to disregard information that does not.86 Research demonstrates that people even "misremember" information that conflicts with stereotypes.87 The bias, therefore, becomes self-reinforcing and stronger over time.

Because these processes occur at such a fundamental level of cognition, people are often quite unaware that stereotypes affect the way they perceive others.88 In fact, such unconscious bias commonly affects the thought processes even of people who consciously reject stereotypes.89 This bias can then translate into discriminatory treatment unchecked by social norms that mitigate against discriminatory behavior - because, of course, the actor does not recognize himself as biased.90 Social science evidence also tells us that unintentional discrimination is particularly likely to occur in situations where discriminatory behavior can be rationalized easily, such as when the norms for what is appropriate (nonracist) behavior are unclear or when there are nonracial justifications for the discriminatory behavior.91

This creates a "perfect storm" of factors leading to discrimination in the AII housing context. Although most of the ordinances provide for the federal government to check the legal status of prospective tenants, for many practical reasons discussed in the next Section, individual landlords have the incentive to undertake their own evaluation of a prospective tenant's status. These landlords will be immediately confronted with the difficulty inherent in determining a person's legal status. It is impossible to discern legal status from looking at a person. Such a determination requires inspecting official immigration documents, which may be difficult for a variety of reasons. There are multiple types of legal status92 and dozens of documents that can demonstrate legal status.93 A person's status can change due to time or circumstances, and reliance on documents is further complicated by the proliferation of difficult-to-detect counterfeit documents.94 Thus, the desire to comply with the ordinances supplies a nonracial justification for discriminatory behavior. Meanwhile, the confusion generated by the difficulty of compliance creates a situation with unclear norms for appropriate behavior. This is just the sort of ambiguous scenario in which unconscious bias will flourish.

All of these factors make it highly probable that people who attempt to comply with All ordinances will "overcomply" and discriminate against national origin minorities who are citizens or otherwise legally present in the United States.95

A similar pattern of discrimination occurred two decades ago after Congress enacted IRCA, which provided for sanctions against employers who employ individuals who are not work authorized.96 From the start, concerns were raised that IRCA's employer sanctions would encourage employers to discriminate against national origin minorities and any noncitizens who were work authorized.97 In an attempt to address potential problems with discrimination, Congress included a provision making it illegal for an employer to discriminate based on national origin or citizenship status.98 Nonetheless, the evidence demonstrated that the employer sanctions had exactly the discriminatory effect feared. A General Accounting Office ("GAO") survey found that 10% of employers admitted to discriminating against people based on language, accent, or appearance because of fear of violating IRCA, and an additional 9% admitted to discriminating on the basis of citizenship status.99 (The percentages were higher in areas with large Latino and Asian populations.) This amounted to approximately 891,000 employers who began discriminating based on either ethnic traits or citizenship as a direct result of the employer sanctions, leading the GAO to conclude that IRCA was responsible for "a widespread pattern of discrimination" against national origin minorities.100 The U.S. Commission on Immigration reform also found a

[P]attern of subjecting foreign-appearing workers to different or additional requirements ... : employers selectively verify employment authorization for some, but not other, employees, refusing to accept valid documents, requiring specific documents from certain workers (such as a green card from everyone they believe to be an immigrant), and accepting only a limited number of documents, such as a driver's license and social security card.101

Unconscious bias, confusion about the law's requirements, and fear of punishment will almost certainly cause what I call "discrimination slippage," which is discrimination against large numbers of individuals who are not the targets of All ordinances. The situation is complicated by the fact that All ordinances, while ostensibly targeted at illegal immigrants, may well be motivated by hostility to immigrants generally or animus against a particular national origin group, regardless of legal status.102 Of course, some All ordinance supporters wish to promote respect for the rule of law and have genuine problems with the fact that unauthorized immigrants have broken the law. They may worry justifiably that the presence of unauthorized immigrants who lack automobile and health insurance will burden the community, and that immigrants willing to work for low wages will undercut the labor market for everyone else. They may fear that allowing unauthorized immigrants to settle in their community will only cause more to come. All of these concerns are legitimate aspects of the debate over illegal immigration. However, some of the sentiments expressed by supporters of All measures are targeted less at legal status and more at the cultural differences between them and particular ethnic groups.103

Put more bluntly, All ordinances often seem motivated by the desire of white residents to "get the Mexicans out of town." For example, the mayor of Valley Park made public statements indicating that the purpose of his city's All ordinance was to prevent Latinos from moving there: "You got one guy and his wife that settle down here, have a couple kids, and before long you have Cousin Puerto Rico and Taco Whoever moving in."104 A city councilman and supporter of the San Bernardino ordinance stated that he was motivated by hearing Spanish spoken in check-out lines and a Wal-Mart ad featuring a dark-haired family wearing Mexican soccer jerseys.105 A Farmers Branch city councilman described his motives for introducing the All ordinance: "I saw our property values declining . . . what I would call less desirable people move into our neighborhoods, people who don't value education, people who don't value taking care of their properties."106

There is also significant anecdotal evidence that members of the general public who favor All ordinances are motivated by antiimmigrant or anti-Latino sentiment as much as they are by the desire to crack down on illegal immigration, or at the very least that they are confused about these distinctions.107 For example, in Hazleton, a Latino reporter (and American citizen) who was covering a rally held in support of the ordinance was confronted by white protestors who shouted at him to "get out of the country."108 Other lawfully present Latinos report being told to get out of the United States by angry mobs.109 Thus, members of the general public may contribute to the slippage by creating an atmosphere in which the terms "illegal immigrant," "immigrant," and "ethnic minority" are conflated.

This Article will therefore proceed under the assumption that All housing provisions will have two effects. The first is the intended effect, which is to prevent undocumented people from entering into leases for, or residing within, rental housing. The second is the (possibly) unintended, but highly likely, effect of increased housing discrimination against all identifiable national origin minorities, regardless of their citizenship or legal status, and against legally present noncitizens.

B. Violations of the Fair Housing Act Likely

1. Background

The primary federal statute aimed at preventing housing discrimination is the Fair Housing Act ("FHA").110 The FHA prohibits housing discrimination against individuals based on specific protected characteristics. The most significant substantive provision in the FHA is § 3604, of which several subsections are relevant to the discussion here.

Section 3604(a) of the FHA makes it unlawful "[t]o refuse to sell or rent ... or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person" because of a protected characteristic.111 This applies both to initial refusals to deal and to other actions - such as eviction - that deprive a person of housing once she has secured it.112

Section 3604(b) prohibits subjecting people who wish to obtain housing to different "terms, conditions, or privileges" because of a protected characteristic.113 It can apply in a variety of situations, such as where tenants are discriminatorily required to abide by different lease terms or rules, provided different levels of service and maintenance, subjected to harassment, or granted different privileges related to the dwelling.114

Section 3604(c) makes it unlawful "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination" based on a protected category, "or an intention to make any such preference, limitation, or discrimination." This subsection applies to both oral and written statements.115

Section 3604(d) prohibits making false representations that a dwelling is not available for inspection or rental, where the false representation is made on a discriminatory basis.116 Because such an act will also make housing unavailable, violations of § 3604(d) will usually violate § 3604(a) as well. The subsection does have independent significance, however, because it gets around the requirement contained in § 3604(a) that a "bona fide offer" to buy or rent have been made. Section 3604(d) thus allows claims to be brought by housing "testers" who pose as real applicants in order to detect discriminatory practices.117

Finally, § 3617 prohibits intimidating or interfering with a person in the exercise or enjoyment of fair housing rights, or doing so because a person has aided or encouraged another person in the exercise or enjoyment of such rights.118 The "exercise or enjoy" language indicates three activities with which interference is forbidden.119 The first is the specific assertion of fair housing rights (for example, filing a discrimination complaint with a federal agency).120 The second is the simple act of seeking, obtaining, or residing in housing on a nondiscriminatory basis.121 The third type of protected activity is assisting another person in exercising or enjoying fair housing rights.122 This is essentially a third party claim: the plaintiff is not the target of discrimination, but claims to have been retaliated against for assisting a person who is targeted.123 Housing providers or their employees are often the plaintiffs who bring this third type of § 3617 claim.124

National origin is a protected characteristic under the FHA.125 However, neither alienage (whether or not a person is a U.S. citizen) nor legal status (whether or not a noncitizen is legally present in the United States, and, if so, under what type of status) are specified in the statute. As a result, both public and private actors are largely free to discriminate on these bases,126 at least as far as the FHA is concerned.127 Although both legal status and alienage may be loosely correlated with national origin,128 for legal purposes, neither is considered congruent with national origin.

Thus, a landlord who wishes to discriminate against national origin minorities may adopt a "citizens only" policy. He would still have to rent to ethnic minorities who are citizens but would be free to discriminate against those who are not, even if they are legally present in the United States. The noncitizens' only recourse under the FHA would be to proceed under a disparate impact theory of discrimination, alleging that the permissible ground for discrimination (alienage) in fact operates to perpetuate discrimination on an impermissible ground (national origin).129 This would require the plaintiff to demonstrate that the alienage discrimination caused a significant disparate impact on a specific national origin minority group.130 Even if such a showing were made, the defendant would then be permitted to argue that the discrimination has a legitimate business justification.131

Similarly, a landlord can institute a "legal residents only" policy, and discriminate on the basis of legal status. A landlord could also discriminate based on levels of legal status, for example, by renting to lawful permanent residents but not those in the United States on work visas. In addition, certain types of trait-based discrimination - for example, the refusal to rent an apartment to a Spanish speaker - may not be prohibited by the FHA, under the theory that traits are not necessarily congruent with national origin.132 In such cases, plaintiffs who believe they have really been discriminated against because of their national origin again must rely on disparate impact theory.133

Thus, there is a gap in protection for national origin minorities, who cannot be discriminated against because of their national origin per se, but who can be discriminated against based on characteristics associated with national origin. To some extent, this gap can be attributed to the different goals of civil rights law and immigration law. Immigration law relies by its nature on status distinctions citizen versus noncitizen, varying levels of legal status, legal versus unauthorized.134 As a result, it can easily conflict with civil rights laws, which prohibit individuals and governments from making distinctions based on national origin, yet may permit them to make other types of distinctions (ethnic trait, alienage, and legal status) that are related to national origin.135

2. Likely Fair Housing Act Violations

a. Private Landlords

In jurisdictions where the legal status of every prospective tenant must be pre-verified, the landlord may face long delays during the verification process (as well as any hearing that might be allowed or required), only to learn that he cannot rent to the person after all 136 por the landlord who rents to a national origin minority, the complaint-driven enforcement procedure means that the landlord never knows when he will receive a complaint questioning the legal status of one of his tenants. The various ordinances give the landlord a relatively short time - anywhere between three and five days - to collect the requested information and submit it to the city for verification. If the verification comes back negative, the landlord has just a matter of days to cure the violation at his own expense. Failure to provide the information or commence eviction proceedings in the requisite number of days exposes the landlord to loss of profits, significant fines, and possibly jail time.

Faced with these bureaucratic obstacles137 and punitive measures, a rational landlord may well refuse to deal with any person who looks, sounds, or seems foreign.138 While the motivation for refusal would be a fear of punishment or a desire to avoid bureaucracy and delay, the decision itself would be based on the landlord's assessment of the prospective tenant's national origin or ethnicity. This would violate § 3604(a) of the Fair Housing Act, which prohibits refusing to rent to, or otherwise making housing unavailable to, a person based on national origin. The landlord (wisely) might not tell the applicant that he refuses to deal with her because she appears to be Latina and he doesn't want to take a chance that she is undocumented. Instead, he might use the benign- sounding excuse that there are no units available. If untrue, this would violate § 3604(d), which prohibits making false statements about unavailability based on national origin.

A landlord who does not wish to turn away all apparent foreigners but who still fears the anti-immigrant ordinance may instead take advantage of the "safe harbor" provision by requesting prospective tenants' documentation. There are multiple problems with this scenario. First, in order to avoid impermissible discrimination, a landlord must request such documentation from all prospective tenants, not just those who seem foreign or who the landlord suspects are unlawfully present. One can imagine how tempting it would be for a landlord to request documents from a dark-skinned person named José Gonzales who speaks with a Mexican accent, but not to make a similar request from a blond-haired person named Bob Smith who speaks with a South Carolina drawl. Similarly, a landlord may feel compelled to request documentation from a Latino applicant with a Hispanic accent (under the assumption that such a person is probably not here legally), and not from a Caucasian applicant with a British accent (under the assumption that Britons are more likely to come here legally). To do either of these things, however, would violate § 3604(b) of the Fair Housing Act, which prohibits discrimination based on national origin in the terms and conditions of housing. Application requirements are considered a "term or condition of housing"; requiring some tenants and prospective tenants to undergo additional or more onerous application requirements than others based on a protected characteristic has been found to violate § 3604(b).139

The landlord may also try to undertake his own evaluation of a prospective tenant's legal status. In addition to the problems described above, this scenario presents other dangers.140 A landlord untrained in deciphering the intricacies of immigration documents is very likely to evaluate the documents incorrectly. A landlord who is presented with documents he does not recognize and who faces punishment for renting to an undocumented alien is likely to err on the side of caution and refuse to rent to the person presenting the unfamiliar documentation. This outcome is even more likely if the landlord fears counterfeit documents and is unschooled in how to detect them.141

A landlord who does ultimately rent to a person who seems foreign may well feel the need to watch this tenant more carefully and scrutinize her guests to ensure that undocumented friends and relatives are not staying in the unit. In addition, because a person's legal status may change over time, the landlord may feel the need to make repeated requests for updated documentation from foreignseeming tenants. Again, these scenarios would violate § 3604(b), which prohibits landlords from treating tenants differently based on national origin. For example, in United States v. Sea Winds of Marco, Inc., the court found that plaintiffs stated a claim under § 3604(b) when they alleged that their condominium association required Latinos - and only Latinos - to wear wristbands identifying them as residents of the complex.142

In all landlord-tenant interactions in which a landlord attempts to ascertain legal status, requests documents, or seeks identifying information, the landlord must be very careful. He is at great risk of running afoul of § 3604(c), which prohibits making statements that evince discrimination based on a protected characteristic. Because there is no requirement that an offending statement be made "because of a protected characteristic, this part of the statute is often referred to as a strict liability provision;143 it does not require that a defendant be motivated by any improper purpose or intend his remark to be discriminatory. Simply making a remark that indicates preference or discrimination is sufficient to violate the statute.

Under some circumstances, merely inquiring as to someone's place of birth, national origin, or citizenship may violate § 3604(c). For example, in Housing Rights Center v. Donald Sterling Corp., the new management of an apartment complex required tenants to apply for parking spaces in the garage.144 The application form required the tenants to state their country of birth, citizenship, and naturalization date. The court found that such questions, with no obvious connection to a person's ability to qualify for a parking space, indicated impermissible national origin bias and violated § 3604(c). Similarly, in Jancik v. HUD, a landlord's telephone query as to the race of a potential tenant was found to violate § 3604(c) because there was no legitimate reason for him to seek such information.145

Of course, in the previous cases, the landlord's inquiries related directly to a protected characteristic and had no bearing on the tenant's qualifications to rent an apartment or obtain a parking space. Under the All ordinances, the tenant's national origin is still technically irrelevant but her legal status is suddenly highly relevant. If landlords are careful and phrase their questions only in terms of legal status, they may not violate this portion of the law. However, laypersons without a lawyer's understanding of the distinctions between national origin, alienage, and legal status are likely to slip up.

Moreover, blatantly discriminatory or offensive terms or phrases are not required to violate § 3604(c) - the subsection can be violated by the use of any term or phrase that "indicates" discrimination. This means that landlords must steer clear of using "catch phrases" or "code words" that might suggest discrimination based on national origin, such as asking whether someone is "from around here" or where his or her accent is from.146 A landlord who is trying to ascertain someone's legal status could easily slip up and use a term or phrase that is later found to be discriminatory.

The complaint- driven enforcement procedure also poses serious risks of channeling the discriminatory sentiments of some members of the general public. Complaints can be made by anybody and are far more likely to be made against identifiable national origin minorities who look or sound foreign.147 Most Hazleton-style ordinances state that complaints that allege a violation based on race, national origin, or ethnicity are invalid.148 Yet it is difficult to imagine what other information someone like a neighbor would have on which to base a complaint. Latinos are particularly likely to be targeted, both because of the anti-Latino animus that surrounds most All ordinances and because people are more likely to believe mistakenly that Latinos are in the country illegally.149 If a landlord repeatedly requests information and documents from national origin minorities in response to complaints, he may violate § 3617 of the FHA, which prohibits interfering with a person's right to enjoy housing free of discrimination.150 If a landlord is repeatedly confronted with complaints about his tenants and hassled by members of the community, this may dissuade him from renting to national origin minorities.151 If the landlord persists in renting to national origin minorities and community members continue to complain, the complaining community members might be violating § 3617 with respect to the landlord, because they are interfering with his ability to assist others in enjoying housing free of discrimination.

The previous paragraphs describe how the threat of punishment and the hassle and delay of verifying a noncitizen's legal status can incentivize landlords to discriminate, even when they may harbor no discriminatory intent. For landlords who want to discriminate against national origin minorities, however, antiimmigrant ordinances provide great cover, especially given the prevalence of counterfeit documents. A landlord can easily make the pretextual claim that he refused to rent to a Latina apartment-seeker not because of her national origin, but because he thought she was here illegally, or because her documents looked funny.

In addition, some national origin minorities - and others - who are citizens may lack the necessary papers to document their citizenship, as well as the citizenship of everyone in their household. Approximately one in twelve low-income U.S. -born adults do not have a passport or birth certificate in their possession. More than one in ten such individuals do not have such documents for at least one of their children.152 This amounts to approximately 3.2 to 4.6 million citizens nationwide whose housing would be jeopardized if they were required to show documentary evidence of their legal status.153

To summarize: All ordinances require landlords to treat tenants and applicants for housing differently based on a factor - legal status - that is very difficult to discern with precision upon first encountering a person and may be difficult to establish even after reviewing that person's relevant documents (if such documents are available). In the face of bureaucratic hurdles and possible sanctions, many landlords subject to All ordinances will likely resort to shortcuts. Such landlords may instead treat tenants and applicants differently based on ethnic markers. This results in two related harms: (1) increased housing discrimination against millions of national origin minorities who are either U.S. citizens or otherwise legally present noncitizens and (2) placing landlords at risk of violating the Fair Housing Act.

That there are two groups of people harmed by All ordinances - those pressured to engage in illegal discrimination and those likely to be discriminated against - should not be overlooked. It appears that landlords fear All ordinances as much as national origin minorities and immigrants do because of the likelihood that attempting to comply will expose them to liability under the Fair Housing Act. In all lawsuits brought to challenge the All ordinances, landlords have been named plaintiffs or participated as amici, underscoring the bind in which the All ordinances place them. A group of apartment owners in Escondido, for example, argued that the All ordinance would:

[TJmmediately and adversely impair their ability to conduct their business and professions by placing them in a prototypical "no-win situation." They must either attempt to comply with the unlawful ordinance, thereby inviting an incalculable number of lawsuits brought on behalf of their current and prospective tenants for violations of federal and state housing, antidiscrimination, and privacy laws, or face the Ordinance's draconian punishment provisions.154

A number of landlords have made similar arguments in other cases challenging All ordinances.155

b. Municipalities

By passing and enforcing anti-immigrant ordinances, municipalities themselves may violate the Fair Housing Act under two different theories. The first is a direct theory. There is a good argument that under any scheme that requires a municipal employee to register or pre-authorize tenants, the municipality discriminates against national origin minorities. Just as individual landlords are unlikely to be skilled in interpreting immigration documents and are subject to bias, so are municipal code enforcement employees.

If municipal employees single out national origin minorities and either deliberately or mistakenly deny them the ability to qualify for rental housing, this constitutes a denial of housing in violation of § 3604(a). If they impose different requirements on such individuals such as extra document checks or delays - this could violate § 3604(b), depending on whether the court considers these actions to be connected to the rental of housing.156 And if they make discriminatory national origin-based statements, they risk violating § 3604(c) if a court deems these statements to be connected to the rental of housing.157

A municipality might also be liable to landlords under the provision of § 3617 that protects people from retaliation for aiding others in their ability to enjoy housing free of discrimination. If a municipality penalizes a landlord for failing or refusing to comply with an All ordinance - for example, if the landlord refuses to request extra documentation from his Latino tenants after receiving a complaint the landlord could have a cause of action against the municipality for retaliation.

The second argument for municipal liability would proceed under a disparate impact theory. The reasoning is that a municipality violates § 3604(a) and (b) and § 3617 by adopting ordinances or by enforcing statutes in ways that will disproportionately harm national origin minorities by causing them to be denied housing, subjected to discriminatory terms and conditions, and harassed based on their national origin. Although others engage in the discrimination or harassment, the municipality is potentially liable for setting up the legal framework leading to these results.

There is a circuit split on the proper test for determining disparate impact for municipal actions. The more complicated test is set forth in Metropolitan Housing Development Corp. v. Village of Arlington Heights158 and is followed by the Fourth, Sixth, Seventh, and Ninth Circuits. The test requires balancing four factors: (1) whether there is a disparate impact on a protected group; (2) whether there is any evidence that the municipal action is, in fact, intentional, or motivated in any part by discriminatory animus;159 (3) whether there is a legitimate economic or public safety rationale for the municipality's action; and (4) whether the plaintiff is requesting that the municipality provide her with housing, or whether she merely wishes for the municipality to stop interfering with her ability to obtain housing for herself.160

Application of the Arlington Heights test reveals that in many cases, a municipal defendant could be liable for passing an All housing ordinance. Whether the first factor, disparate impact, is satisfied will depend on the statistical evidence in a given case. If (as I assume) Latinos are shown to be significantly more likely to experience discrimination as a result of the ordinance, then this factor cuts in favor of liability.

As for the second factor, intentional discrimination, there may be evidence that All ordinances are motivated both by animus against illegal immigrants and by animus against ethnic and national origin minorities. As discussed previously, while there are legitimate reasons for communities to be concerned about illegal immigration, there is evidence that some of the All ordinances were passed in the wake of significant anti-Latino sentiment, as expressed by municipal leaders (recall the mayor of Valley Park's "Cousin Puerto Rico and Taco whoever" statements) and private citizens.161 This also weighs toward liability.

Whether the municipality can satisfy the third factor, a legitimate economic or public safety rationale, will depend on the quality of the municipality's justifications for the ordinance. The courts do not apply traditional Equal Protection scrutiny levels to these justifications, and they appear to vary in how closely they will analyze the defendant's proffered explanation.162

Many of the reasons cited for passage of All ordinances are demonstrably false, have no supporting evidence, or cannot be traced to illegal immigrants. For example, Hazleton's ordinance stated that it was adopted because "[i] Ilegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services . . . and diminishes our overall quality of life."163 The court, however, observed that (1) the city had provided no evidence that crime had increased; (2) crime had, in fact, decreased in Hazleton; and (3) even if crime had increased by 10%, as was asserted at oral argument, the city failed to produce any evidence that this increase was connected to illegal immigration.164 The Farmers Branch ordinance offers an even more extreme example of the disconnect between justifications and reality. The sole justification cited for the city's All housing restrictions was the terrorist attacks of September 11, 200 1.165 The assertion that All housing measures fight terrorism is a stretch, to say the least, one that depends on the assumption that most potential terrorists (1) are present in the United States illegally and (2) will be deterred from their plans if they experience difficulty renting an apartment.166

In terms of the third factor, enforcement of All housing restrictions would frequently undermine the stated public health and economic goals behind the restrictions. As discussed in greater detail, infra, many of the ordinances state that immigration-related housing restrictions are necessary to eliminate overcrowding and to combat substandard housing conditions. However, ordinances that prevent people from obtaining quality housing are in fact likely to cause people to live in overcrowded or inadequate housing.167 While all of the above belies the notion that All ordinances have a legitimate purpose, whether this prong weighs in favor of liability will ultimately depend on how much deference is accorded to the municipality.

With respect to the fourth Arlington Heights prong, the plaintiffs challenging All ordinances are not seeking to force the municipality to provide them with housing. Rather, they simply wish to prevent the municipality from impeding their ability to obtain housing for themselves, which clearly weighs in favor of liability.

A simpler test is set forth in Huntington Branch, N.A.A. CP. v. Town of Huntington166 and followed by the Second, Third, Fifth, and Eighth Circuits. This test consists of factors (1) and (3) from the Arlington Heights test: Is there a disparate impact on a particular national origin minority? If so, is there a legitimate nondiscriminatory reason for engaging in the practice? The analysis under Arlington Heights, therefore, can translate to the Huntington test, and in most cases would lead to the same result.169

III. PUBLIC POLICY ARGUMENTS MILITATE AGAINST ALL HOUSING MEASURES

The previous Section argued that All housing ordinances are likely, in their application, to result in discrimination against national origin minorities and violations of the Fair Housing Act. Even ignoring the Fair Housing Act, there are several reasons why immigration-related housing restrictions are unwise. Housing, unlike other subjects that All ordinances may target, implicates special matters of public policy. I separate these housing-related public policy matters into rights-based concerns and practical considerations.

A. Rights-Based Rationales

1. Collateral Damage

One important way in which housing differs from many of the other subjects targeted by All ordinances is that when people are prevented from obtaining housing, the rights and interests of children, families, and communities also suffer.170

a. Children and Families

Denying an individual access to housing also affects the people with whom she lives. A significant number of immigrants live in "mixed families," in which some members are citizens or have legal status and some lack legal status.171 While ostensibly targeted only at unauthorized persons, All housing provisions make it impossible for a mixed family to live together under one roof and thus penalize the entire family. Such a result unfairly harms the family members who are in the United States legally. This is especially so for the millions of families in which the adult household members are unauthorized but the minor children are citizens or legally present aliens because unemancipated minors may not legally reside anywhere without adult guardianship.172 Early anecdotal evidence indicates that mixed families are hard hit by All ordinances.173

Even where all members of a family are unauthorized, punishing the entire family is unfair because it affects children who are clearly innocent victims.174 Although often criticized, the Supreme Court's opinion in Plyler ?. Doe175 articulates powerfully the rights and interests implicated when undocumented children are punished for their parents' actions. Plyler involved a state law that would have denied funding to public schools that served children who lacked legal status.176 The Court recognized that the law ultimately penalized children who were not responsible for their unlawful status.177 Their parents chose to enter or remain in the country illegally, and the children were incapable of remedying the situation by independently moving back to their home countries:

The children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status." Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.178

The Plyler Court concluded that it violates Equal Protection to deny public education to undocumented children179 despite the fact that education, like housing, is not a fundamental right guaranteed by the Constitution.180

Plyler also contains the kernel of an argument supporting the right of undocumented children to housing. Plyler grants unauthorized immigrant families legitimately domiciled181 within a school district the right to send their children to public school in that district. The opinion specifically notes that "illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State."182 Thus, a person's ability to establish residence or domicile within a particular state - and the rights that flow from such residence - may be disaggregated from whether her presence in the country is legal or not.183 The argument is a tricky one because the opinion does not endorse a "right of residence."184 At most, it appears to simply acknowledge the social fact that undocumented immigrants have taken up residence in many school districts, and that it is possible for rights to flow from this residency.185

In addition to implicating the rights of children, housing restrictions infringe on the ability of family members to live together as a unit. In a long line of cases, the Court has recognized a substantive due process right to family privacy.186 It is wellestablished that the government cannot take actions that "slic[e] deeply into the family itself'187 unless it can meet the requirements of strict scrutiny. For example, despite the traditional deference to municipalities in zoning matters, the Supreme Court held in Moore v. City of East Cleveland that municipal zoning restrictions that limit areas to single-family occupancy and define "family" in a way that prevents certain family members from living together are unconstitutional because they violate the right to privately order family as one chooses.188 All provisions that prevent a family from residing together because one member of the family lacks legal status raise similar constitutional concerns.

Local governments may respond that AII provisions meet strict scrutiny because the community's need to rid itself of unauthorized persons is a compelling state interest.189 A court may well find, however, that the AII provisions fail the strict scrutiny test because they are not narrowly tailored; they are both overinclusive (by burdening innocent family members) and underinclusive (by restricting unauthorized people only from residing in rental units, but not from owning property or residing with others who do).190

b. The Community

Housing practices that prevent a particular group from obtaining housing in a particular area also implicate the interests of the broader community.191 Widespread discriminatory practices skew the racial balance of the entire community and can lead to racial and ethnic segregation.192 Physical isolation breeds a lack of understanding at best and animosity, inequality, and violence at worst.193 Segregation is reinforced by its negative consequences: a distorted residential real estate market, reduced property values, a diminished tax base, and segregated schools.194 Ultimately, these harms are borne by the community as a whole, not simply the excluded groups.195

Segregationist practices are especially insidious and intractable when they are exclusionary. This is particularly true for such policies adopted into state or local policy. The reason is simple: people kept from living within a municipality or county will have a hard time playing a meaningful role in that locality's political process.196 Residency within a geographic boundary has long been viewed as a key element of the franchise.197 The requirement that one be an "insider" to have a say in local policy means that those who are forced or kept out will have a limited ability to change the status quo.198 Meanwhile, those who are "in" will continue to shape the community in ways that suit their own preferences.199 The segregation and exclusion thus becomes self-perpetuating and increasingly difficult to remedy.200 Currently, non-naturalized immigrants who are unable to vote (as they are in all but a few jurisdictions)201 can still influence the polity through decisions about where to spend money, the types of businesses they operate, and which public services to use.202 In addition, nonvoting residents can support particular institutions that have political power, such as churches, civic organizations, and advocacy groups.203

Standing doctrine under the Fair Housing Act has long recognized that housing discrimination and the resulting segregated living patterns affect the entire community.204 The FHA authorizes any person aggrieved by housing discrimination to file a complaint.205 It defines "aggrieved person" broadly as "anyone who claims to have been injured by a discriminatory housing practice" under the statute,206 which means that a person can raise an FHA claim even if he or she was not the target of discrimination.207 For example, in Trafficante v. Metropolitan Life Insurance Co., a white resident of an apartment complex sued the complex because its racially discriminatory policies effectively ensured that virtually all residents of the complex were white.208 A unanimous Supreme Court held that the plaintiffs injury, which consisted of "the loss of important benefits from interracial associations,"209 was sufficient to grant standing under the FHA. The Court reasoned that "[t]he person on the landlord's blacklist is not the only victim of discriminatory housing practices; it is, . . . 'the whole community[.]' "210 A number of other Supreme Court cases have endorsed this view of community harm and "community standing" under the FHA.211 This line of case law is growing dated, however, and has been undercut (although not overruled) by the Rehnquist Court's standing rulings in cases like Lujan v. Defenders of Wildlife.212 It is also quite likely that the current Supreme Court would look unfavorably on the FHA's liberal standing doctrine. I do not wish to weigh in on the continued soundness of the FHA's standing doctrine. Rather, I cite this line of cases merely to underscore that housing discrimination and segregationist practices cause harm to a broader swath of individuals beyond the immediate victims, and that such harm has been judicially recognized.

Early anecdotal evidence indicates that, in fact, significant numbers of Latino residents are leaving areas that have passed AII ordinances.213 In some instances, this rapid loss of a significant part of the community has burdened the larger community with economic and social upheavals.214 For example, the newly-revitalized business district in Riverside, New Jersey, became vacant again after the town's AII ordinance was enacted, and many initial supporters of the ordinance came to question whether it had actually benefitted the town.215

2. The Significance of Housing

The point is simple but important: housing is central to basic human existence. The consequences of the other AII provisions - the inability to work, the inability to do business in one's native language, or the deprivation of public services - are serious, but losing stable housing is potentially devastating to all other aspects of life.216

One commentator observes:

Of all the elements that comprise cities, suburbs, and towns, housing is perhaps the most complex. In addition to providing shelter, housing is also the driver of transportation patterns, a consumption good, a prominent feature of the built environment, an investment for building wealth, a determinant of social interaction and achievement, and a symbol of familial connections and personal history.217

Another illustrates "the centrality of housing" by pointing out that housing "functions as the focal point where [multiple] critical economic and social forces and practices intersect."218 A third argues:

Housing is never merely shelter. However inadequate and temporary, one's shelter becomes the ground floor for meeting basic needs, a foundation for job search and education, and a piece of one's identity - a "home" of sorts. For those who have always been adequately housed and take it for granted, a full appreciation for the importance of adequate, decent[,] and affordable housing can probably only be gained by experiencing its loss.219

Residence also has important ramifications for self-definition. Richard Briffault argues that "[l]ocalities are valued not as temporary nodes in a continual migratory process, but as 'life spaces,' rich with personal and cultural meaning. . . . Local citizenship can be seen, not simply as a matter of residence, but as 'primarily a relation of membership' in an on-going entity."220 For all of these reasons, the concept of the home has long occupied an important position in the American consciousness and legal system.221

But the concept of the home as a legal entity has its limits. Although human rights paradigms recognize the importance of housing, and some human rights treaties and other resolutions treat housing as a basic right,222 these agreements are either nonbinding or the United States has refused to sign them. Social justice activists in the 1970s also failed to establish a positive right to housing in the federal Constitution,223 and American courts have consistently refused to recognize a positive right to shelter.224

Nevertheless, American policy still recognizes the value of shelter even if there is no positive right to a home. The Housing Act of 1949 established as a national "goal" that every American family have "a decent home and a suitable living environment."225 Thus, federal, state, and local governments may attempt to supply housing to those in need as a policy matter but at the same time refuse to recognize any legal right to housing.

However, the individuals directly or collaterally deprived of housing by AII ordinances - legal immigrants, unauthorized immigrants, and U.S. citizens of manifest ethnicity regardless of immigration status - are not asking any unit of government to provide them with housing. Nor are they asking private individuals to supply them with housing free of charge.226 They are simply attempting to procure housing for themselves, at their own expense, on the private market. An analogy between food and housing, both basic necessities, might be instructive here: Even though many people in America may believe that unauthorized immigrants should not be eligible for food stamps, how many would argue that they should be prohibited from buying food? There is something particularly inhumane about a legal regime that prevents people from obtaining shelter, even those who are illegally present in the country.

3. Harassment and Hostility

Increased hostility against, and harassment of, national origin minority group members will likely result from AII ordinances generally and AII housing measures in particular.

AII ordinances generally create deep and ugly rifts in the communities that debate enacting them. City council meetings turn violent, groups on each side of the issue hold massive demonstrations, and threats are made against city officials and activists.227 Moreover, in the areas where AII ordinances have passed, Latinos report being constantly and indiscriminately harassed.228 It is impossible to determine how much of this harassment is traceable to any particular AII provision or how much stems from the acrimony of the public discourse and the inflammatory rhetoric of those who support these measures. However, if we could draw such distinctions, it seems likely that a good deal of the harassment would stem from the housing provisions. This is because the goal of AII housing measures is not to prevent people from engaging in a particular activity (such as working, conducting business in Spanish, or congregating in a particular place), but to remove a specific group of people from the community. When this is combined with the difficulty of determining immigration status; the public's confusion over legal status, alienage, and national origin; and the perception that people of manifest ethnicity are "aliens" - not to mention the irresponsible statements of political leaders229 - the result is a cloud of suspicion over all national origin minorities. Thus, jurisdictions with AII housing measures tend to be centers of mass community sentiment against the very presence of Latinos and other groups, regardless of their actual legal status. In short, they are harassed simply for being within the city limits and looking like they are not from the United States.

The experience of California in the wake of Proposition 187,230 a 1994 state ballot initiative that barred undocumented immigrants from receiving most public benefits and public education, is instructive. Commentators noted that numerous acts of harassment and discrimination followed after the ballot initiative passed and that the majority of victims were U.S. citizens or legal immigrants, not the undocumented individuals who were the initiative's targets.231 Researchers observed a 23.5% increase in hate crimes against Latinos in Los Angeles that year, and advocates described thousands of calls to a hotline for reporting complaints about ethnic-based harassment and discrimination.232

B. Practical Considerations

In addition to the rights-based arguments against AII housing measures, there are a number of practical reasons why AII housing provisions should not be pursued as a matter of public policy. These considerations include the nature of housing and the landlord-tenant relationship, the lack of connection between housing and illegal immigration, the manner in which most AII ordinances would have to be enforced, and the contrary goals and consequences of such enforcement.

1. Nature of Rental Housing and the Rental Transaction

Several characteristics of private rental housing and the rental transaction demonstrate the perversity of attempting to introduce immigration restrictions into the equation. First, renting an apartment is an arm's length consumer transaction. It takes place on the private market, with little oversight from state or federal authorities.233 The typical apartment rental involves some initial contact between the landlord and the tenant as the parties arrange for the rental, but little direct interaction after that. No agency relationship is formed, as with an employer-employee relationship.234 The landlord and the tenant are simply two private individuals who have entered into a contract the performance of which usually involves little more than sending a monthly rent payment. Bringing immigration law enforcement into this transaction makes little intuitive sense, and the slippery slope argument is strong: If we allow immigration restrictions for rental housing, what comes next? Requiring people to show their birth certificates or immigration papers before they buy a car? A pair of shoes? A gallon of milk?

Moreover, private rental housing has no logical intersection with other government programs in which verification of immigration status is justified. In employment, for example, requiring employers to check the immigration status of their employees makes sense because employers must report salary payments and withholdings to the Internal Revenue Service, state taxation authorities, and the Social Security Administration. Immigration status is relevant to how people are taxed and whether they are able to participate in the social security system. Put another way, by working and paying taxes, a person becomes connected into various state and federal bureaucracies in ways that implicate immigration status. The same does not hold true for renting an apartment.

2. Relationship Between Housing and the Stated Goals of AII Ordinances

One of the chief goals of AII provisions generally is the preservation of scarce resources for American citizens and those legally present in the United States. Jobs are one such resource. The belief that unauthorized immigrants are "taking" jobs from American citizens is one of the most powerful forces driving the anti-illegal immigrant movement. Hence, Congress passed IRCA, which singled out employment as an area of particular concern.235 Virtually every state and local AII ordinance features employment restrictions as its centerpiece. Public benefits are another scarce resource; thus, virtually all federal benefits are limited to American citizens and legal immigrants. By contrast, in the vast majority of markets nationwide, private rental housing is not a scarce commodity.236 There is no serious argument that undocumented people are depriving others of apartments. Similarly, an argument against the employment of unauthorized immigrants is that it skews the labor market by driving wages down. No argument can plausibly be made, however, that the presence of unauthorized immigrants skews the market for housing by driving the cost of housing up.

A related goal of All legislation is to eliminate "pull factors" that draw unauthorized immigrants into this country and to particular areas. Employment is the single most powerful pull factor for illegal immigration to this country.237 Similarly, public benefits such as health care, education, and welfare, are regarded as pull factors (although whether these benefits actually "pull" has never been demonstrated).238 Housing, in contrast, is simply not a pull factor that brings unauthorized people to the United States.239 No one has argued that the housing provisions of All ordinances are necessary to stop people from coming to the United States in search of private rental units.

While housing does not draw unauthorized people to any particular area, it is true that the ability to obtain some type of housing is usually a necessary condition for them to remain there for any length of time. Rental restrictions therefore do serve another usually unstated - goal of All measures, which is to make life so unpleasant for unauthorized people that they will leave voluntarily.240 This goal contains some inherent problems.

First, if the All housing provisions fail to drive unauthorized people out of town and instead drive them further underground, the results will run directly counter to the stated reasons for the housing provisions: the elimination of overcrowding and poor housing conditions. Virtually every ordinance that contains housing-specific justifications points to these goals. The ordinance of Cherokee County, Georgia, contains representative language:

4. Because [unauthorized immigrants] are not in this country lawfully, there is an increased chance that they will reside in dwelling units without typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of the County to be effective. The regulations of the County regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions, and notify authorities [sic], or to participate in subsequent proceedings to remedy such conditions. This creates an increased likelihood that housing and property maintenance violations will remain unreported and because such conditions are unreported, an increased chance that such conditions will multiply in the future.

5. Because of the lack of tenancy arrangements that are subject to normal civil and regulatory processes . . . there is a greater chance that such individuals will occupy residential units in excessively large numbers, or under living conditions, that do not meet applicable building and health and safety codes. This creates unanticipated burdens on the unit and the public infrastructure supporting such dwellings.241

All rental restrictions, however, will likely lead to overcrowding, because people who cannot rent housing on their own will "double-" or "triple-up" with families who own their homes or who live in rental housing with lax landlord oversight. Unauthorized immigrants may be forced into substandard living conditions, as unscrupulous landlords who are willing to violate the law take advantage of them and charge high rents for poor-quality housing. It is hard to imagine a plan more likely to increase these ills than one that prevents people from freely renting decent housing of their own.

A second problem with using rental restrictions as a mechanism for driving unauthorized immigrants out of town is that these restrictions are both under- and over-inclusive. They are underinclusive because they do not reach all unauthorized immigrants, just those residing in or seeking to reside in rental housing. Unauthorized people, so long as they reside in the United States, are still able to legally purchase homes in virtually every jurisdiction.242 They may also reside with friends or relatives who own their homes, or they may become homeless but still remain in the area to work. All rental restrictions are over-inclusive because, as discussed supra, they may force out U.S. citizens and legal residents who reside in mixed families.243

3. Regulatory and Bureaucratic Mechanisms

The regulatory and bureaucratic mechanisms required to implement any All housing ordinance would be onerous, intrusive, and prohibitively expensive. Regardless of who enforces All housing measures - federal officials, local officials, or private landlords - the ability to do so depends on the existence of a quick, cheap, and reliable means to verify the legal status of every tenant and applicant for housing. Indeed, virtually all of the Hazleton- style ordinances require verification with the "federal government" as a central feature of their enforcement and/or registration schemes. Such a requirement would require a comprehensive database containing accurate and up-to-date information about every lawful immigrant and non-immigrant visitor to the United States at a given time.244 No such database exists.246

The federal government maintains a variety of immigrationrelated databases for specific purposes. For example, the U.S. Customs and Immigration Service ("USCIS") operates a database to check immigration status for work authorization called E-Verify (formerly known as Basic Pilot).246 ?-Verify compares a job applicant's name, date of birth, and social security number against centralized databases run by the Social Security Administration and USCIS to verify identity and citizenship status.247 The information is then run through a database operated by the Department of Homeland Security to determine employment eligibility.248 ?-Verify is part of a larger program used to check immigration status for receipt of welfare benefits called Systematic Alien Verification for Entitlements ("SAVE").249 There are a variety of reasons why these systems should not be used to verify legal status for prospective tenants.

First, these databases are filled with inaccuracies, and these inaccuracies disproportionately work to the detriment of noncitizens and naturalized citizens. Audits of the ?-Verify program have found that foreign-born people who are work authorized are thirty times more likely to receive a tentative nonconfirmation from the database.250 Almost 10% of foreign-born individuals who are U.S. citizens receive erroneous tentative nonconfirmations.251 Because of data entry errors, lack of updated information, and inconsistent recordkeeping systems across databases, an estimated 20% of all initial program entries result in false negatives.252 The Social Security Administration's database is riddled with errors, which are caused by data-entry mistakes, inconsistent transliteration of foreign names, applicants who use a less "foreign" sounding first name for work purposes, and different naming conventions that are common in many parts of the world (such as multiple surnames, or the inversion of family name and given name).253 The problems with these databases led Illinois to pass a law prohibiting employers from making use of the E-Verify system.254 As a result of these flaws, noncitizens and naturalized citizens suffer expense and delays in obtaining employment. If the false negative cannot be reconciled, the records must be verified by hand, which can take two weeks or longer.255 This causes problems for employees who wish to begin work. For a family waiting to move into an apartment, such a delay may cause a serious hardship.

Second, studies have also shown that employers consistently use the E-Verify system improperly, in ways that harm noncitizens and national origin minorities. A Memorandum of Understanding that all users must sign requires that E- Verify only be used to verify the status of individuals who have received offers of employment - that is, it should not to be used to screen job applicants or to eliminate existing employees hired before E-Verify's creation.256 In addition, employers are prohibited from penalizing employees who receive a tentative nonconfirmation. Audits of the program, however, have discovered that employers are likely to use ?-Verify to do all the above: screen out applicants, weed out existing employees, and penalize employees whose status cannot be immediately confirmed.257 These actions are disproportionately taken against Asian and Latino workers.

The lack of a centralized system makes any system requiring "dial-in" or web-based verification infeasible. Simply maintaining an easily accessible, constantly changing database with information about every single legally present noncitizen - a larger group than those people who are work authorized - would be a costly and daunting administrative task. Even with such a system, verification of all prospective tenants of rental housing would be impractical and extremely expensive given the numbers involved. Rental housing makes up a significant amount of the private housing market. In 2000, there were more than 35.6 million units of rental housing in the United States, which accounted for 33.8% of all housing.258 The average rental unit contained 2.4 people.259 Recall from the earlier discussion of the Fair Housing Act that, to comply with the law, All provisions must apply to all prospective tenants, not simply those who "seem foreign."260 Thus, every single renter or prospective renter would have to prove his or her legal status prior to signing a lease. If All housing restrictions became national policy, this would come out to well over 85 million people whose status would have to be verified.261 Creating and operating a program of this magnitude would be both costly and a bureaucratic nightmare.262

The U.S. immigration system is extremely complex. It already requires an enormous bureaucracy to administer and enforce. It necessitates unwieldy databases and multiple processes just to verify whether a person is work eligible. If landlords and local officials were required to determine whether every tenant is "lease eligible," the bureaucratic obstacles and costs would be prohibitive. It is unlikely that the nation's landlords - and tenants - would be willing to accept this extra layer of regulation and bureaucracy. The collateral consequence of such a regime would likely be that many small landlords would choose to leave the rental business entirely, rather than assume the costs and legal risks of attempting to comply.

IV. THE NEED TO PROTECT HOUSING ACCESS FOR LEGALLY PRESENT NONCITIZENS, LEGAL IMMIGRANTS, AND NATIONAL ORIGIN MINORITIES GENERALLY

The analysis in Section Il concluded that All housing ordinances are likely to cause landlords to violate the Fair Housing Act and lead to increased housing discrimination against national origin minorities. Even though All ordinances do not facially conflict with the FHA (they do not, after all, instruct landlords to discriminate on the basis of national origin), they will almost inevitably violate it in their application. A regime in which both coexist, therefore, is untenable. As a result, Congress has two choices: it must either remove the prohibition against national origin discrimination from the FHA, or it must prevent municipalities from enacting All housing provisions.

If Congress removes national origin as a protected characteristic from the FHA, the result will be disastrous for national origin minorities. National origin was listed as a protected characteristic in the original version of the FHA precisely because Congress recognized that, like race, it is highly likely to be the object of invidious discrimination.263 Private discrimination based on national origin has been commonplace in American history.264 Local governments have used their zoning and regulatory power to target national origin minorities since at least the mid-1800s.265 Racially restrictive zoning was common in the beginning of the twentieth century.266 One of the fears of early opponents of modern zoning was that municipalities would use zoning ordinances "for the purpose of segregating in like manner various groups of newly arrived immigrants."267

Even with national origin as a protected characteristic, all of the available data indicate that national origin minorities particularly Latinos - continue to face tremendous levels of discrimination in the private rental market. The most comprehensive national testing project done to date found that there is a 25.7% likelihood that a Latino will be discriminated against when seeking rental housing.268 Based on these findings, it is estimated that a total of 1,178,315 instances of discrimination against Latinos occur annually in the private rental market.269 Testing for "accent discrimination" reveals that Latinos with a discernable accent may be discriminated against as much as two-thirds of the time they attempt to obtain rental housing.270 Latinos currently experience high levels of residential segregation from non-Latino whites.271 And even though overt national origin discrimination in zoning is prohibited, municipalities have found more indirect ways in recent years to target Latinos for discrimination.272

National origin minorities, particularly recent immigrants, share characteristics that make them more vulnerable to housing discrimination and poor treatment by unscrupulous landlords. For example, landlords may take advantage of their tenants' lack of legal status, knowing that they will not complain.273 Even immigrants who are legally present may be reluctant to initiate complaints because they are not citizens.274 They may also be unaware that they possess legal rights not to be discriminated against in housing and lack knowledge of where to go for help.275 Language differences may also act as an impediment.276 In addition to outright national origin discrimination, the financial circumstances and family characteristics (such as larger and extended families) of recent immigrants make it difficult for them to find housing and easier for landlords to discriminate against them.277

National origin is thus an extremely important protected characteristic in the housing context, and eliminating it would threaten access to housing for millions of national origin minorities. The All housing ordinances, therefore, must go. The United States needs a strong national policy against All housing restrictions; thus, Congress should enact legislation explicitly preempting states and localities from enacting such restrictions.278

The time may well come, however, when Congress is asked to consider what actions it can take to restrict housing for unauthorized immigrants. It may wish to devolve authority to the states to act or enter into cooperative agreements with localities or require individual landlords to screen for legal status. For the reasons discussed in Section III, however, none of these options is advisable. Congress must not only prevent states and municipalities from legislating in this area; it must also decline to take any action itself in support of All measures.

This, however, will still not go far enough to protect national origin minorities and legally present noncitizens from housing discrimination because housing discrimination based on legal status and alienage remains permissible under the Fair Housing Act.279 Landlords may attempt on their own initiative to screen tenants for legal status or alienage, or landlords may feel pressure to do so from municipal authorities or community members. There are two problems with this. First, these attempts will only lead to discrimination slippage and result in discrimination based on national origin. Second, even in the absence of discrimination slippage, housing discrimination against noncitizens who are legally present in the United States is problematic. It is illogical and bizarre that our national immigration law permits legally present noncitizens to reside here, and yet our housing rights law allows private individuals to deny them housing because of their legal status.

In addition to preempting subfederai governments from passing All housing ordinances, Congress should make alienage a protected characteristic in the Fair Housing Act, clearly according legally present noncitizens the same level of protection in the housing market that they receive in the employment market.280 The FHA's omission of alienage invites discrimination and has empowered the municipalities that passed All housing ordinances.281 There is no good reason to permit a landlord to discriminate on this basis, particularly with respect to permanent residents who have indicated an intention to reside in this country indefinitely.282 At the same time, there is a strong likelihood that such discrimination is based on animus toward noncitizens, national origin minorities, or both. At least one major city, New York City, has recognized this, and has a longstanding ordinance prohibiting landlords from inquiring about or discriminating on the basis of the alienage or citizenship status of prospective or existing tenants.283

But adding alienage as a protected status still may not go far enough. In the absence of a prohibition against legal status discrimination, landlords are free to discriminate against groups of people who are legally entitled to be in the United States. For example, a landlord can decide to rent to people with a particular legal status, such as lawful permanent residents, but not to others, such as individuals on work or student visas. Moreover, discrimination slippage suggests that a prohibition against alienage-based discrimination would be meaningless without protection based on legal status. It would be far too easy for a landlord attempting to discriminate only on the basis of legal status to discriminate based on citizenship or national origin. Therefore, Congress should also consider making legal status a protected category in the Fair Housing Act. This would prohibit housing providers from inquiring about or discriminating based on a person's immigration status. This would also interpose another barrier to local and state governments trying to pass All housing ordinances.

Recently, California adopted a first-of-its-kind law that does exactly this. The law prohibits landlords from asking tenants or prospective tenants for proof of legal status284 and prohibits California municipalities from passing legislation to compel landlords to make such inquiries.285 Not surprisingly, the law passed with the support of both immigrant rights groups and apartment owners.286 At the time of this writing, the law had only recently gone into effect, so its longterm effects are difficult to gauge.287 From the perspective of safeguarding housing for national origin minorities and legally present noncitizens, however, it is clearly a step in the right direction.

CONCLUSION

The combination of All ordinances, discrimination slippage, congressional inaction on comprehensive immigration reform, and the gaps in fair housing laws has left us in an unstable position with respect to housing our nation's immigrants and national origin minorities. Something has to give. Unfortunately, the Hazleton opinion merely defers the reckoning to another time or another authority.

In order to protect national origin minorities who are citizens and legally present noncitizens from discrimination, it is not enough for the federal government to bar localities from passing All housing ordinances and to refuse to act itself. Such discrimination already occurs to a significant degree, and it is only encouraged by the contentious nature of the immigration debate. Discrimination slippage, and the fact that both alienage and legal status discrimination are permissible under the Fair Housing Act, already create conditions in which people who have every right to be in this country are likely to be discriminated against in housing.

As a result, Congress must create affirmative protections in the Fair Housing Act for both alienage and legal status. However, the experience of California notwithstanding, a blanket prohibition against taking legal status into consideration in housing would be a hard sell as a matter of federal law. Even the most pro-immigrant politicians tend to draw the line at illegal immigrants, and there would be enormous political backlash among some constituencies if such a law did pass. Given the intense emotions surrounding the issue of illegal immigration, it is difficult to imagine the general population accepting the concept of illegal immigrants being given any type of "special protection" in the law, particularly if this law is imposed from Washington.288

It is important, however, to underscore that these (somewhat radical) reforms I propose are necessary to combat discrimination against American citizens who are national origin minorities and legally present noncitizens-groups of people whom our laws recognize as having every right to be here. That my proposals will also have the effect of making life slightly easier for undocumented immigrants is a collateral consequence that, I submit, is worth accepting when it comes to an area as fundamental as access to housing.

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[Author Affiliation]

* Associate Professor of Law, University of Missouri-Columbia. B.A. University of Virginia, J.D. Stanford Law School. The author was formerly a Trial Attorney for the United States Department of Justice's Civil Rights Division, in the Housing & Civil Enforcement Section. I am grateful for comments and suggestions on earlier drafts from Bob Schwemm, Huyen Pham, Kevin Johnson, Clare Huntington, Florence Roisman, Robert Pushaw, Peggy McGuinness, and Michael Byrne. The American Association of Law Schools' Workshop on Local Government at Risk, held on January 3, 2008, contained outstanding presentations which helped to shape and clarify my thinking on these issues. The Civil Rights Litigation Clearinghouse operated by the Washington University Law School provided an invaluable resource. I would like to thank my research assistants, Carly Duvall and Lauren Standlee, and my library liaison, Cindy Shearrer, for their excellent assistance. I sincerely appreciate the generous support of the University of Missouri's Summer Faculty Research Program.