It's never too late to hold that a statute is illegal

The New York City Housing Maintenance Code contains a provision (Section 27-2076(b)) which prohibits children under 16 years of age from living in a single room occupancy (SRO), i.e., rooming units without kitchen or sanitary facilities. That law was enacted in 1960. In 2008, a Federal court ruled that this law might violate the Fair Housing Act.

The case is Sierra v. City of New York, 2008 U.S. Dist. LEXIS 38757 (S.D.N.Y. May 14, 2008). At the time, this law seemed like a good idea. Children shouldn't live under these potentially unsanitary conditions, and the law was intended to protect them. The problem is that eight years later, Congress passed the Fair Housing Act, which makes it illegal to refuse or deny housing to anyone because of their familial status. The NYC housing law is facially discriminatory under the Fair Housing Act because it prohibits certain families from living in SRO's. Faced with this conflict, Judge Jed S. Rakoff sides with the Sixth, Ninth and Tenth Circuits in holding that the City law should be reviewed under "heightened scrutiny" and not the rational basis test adopted by the Eighth Circuit. This means that the City has a greater burden in justifying the SRO law.

That will not be easy, Judge Rakoff finds. The City's rationale for the SRO law may be legitimate in theory, but not in practice. Evidence before the judge suggests that landlords are both ignoring the law when they rent to families and then seek to have these low-income tenants evicted when the landlord has the opportunity to earn more money from the apartment. That tactic harms children because the family is forced into homelessness, "a condition far more detrimental to children's safety than living in SRO's," Judge Rakoff observes.

The court is not yet ready to find the SRO law illegal. In preparation for an injunction hearing, the parties have an opportunity for limited discovery on such issues as how often landlord kick poor families from the SRO's, and the living conditions of these families afterwards.