Temporary Solutions Have Done Little to Address the Minority Eviction Epidemic Magnified by COVID-19

Kyle Lydy, Managing Editor (‘21)

I. Background

 COVID-19 is predicted to result in up to 40 million evictions due to economic hardships.[1] The current housing crisis has impacted some populations more than others, whereby minorities account for 80% of COVID-19 related evictions.[2] On September 4, 2020, the Centers for Disease Control and Prevention (CDC) promulgated a regulation designed to prevent the spread of COVID-19 by temporarily prohibiting evictions.[3] The CDC renewed this regulation on December 27, 2020, and it is now set to expire at the end of January 2021.[4] Despite the regulation’s stated goal of halting evictions, tenants are still losing their homes. One explanation for this crisis is the ambiguity contained within the regulation. Courts are not interpreting this regulation in a uniform manner, meaning that in some instances, courts are still allowing evictions to proceed.[5]

The COVID-19 pandemic has disproportionately impacted minorities for a number of reasons. In April 2020, a study from the Aspen Institute found that 61% of Hispanic Americans and 44% of Black Americans reported that they, or a household member, experienced a job or wage loss as a result of the pandemic.[6] In comparison, this study found that only 38% of White Americans experienced a job or wage loss.[7] The fact that many minority workers are unable to work from home is a factor contributing to this statistic.[8] Furthermore, accessibility to unemployment benefits is overstated given the complexity of the U.S. unemployment system, and as a result, unemployed individuals often have nowhere to turn.[9] Moreover, tenants facing eviction often lack financial resources for legal representation, thus creating an even greater imbalance of power between the landlord and the unrepresented tenant.[10]

Legal aid firms providing free legal services to low-income individuals rely on federal funding.[11] Legal Services Corporation (LSC), a nonprofit established by Congress, provides funding to legal aid firms, which is used to offer free legal services to low-income individuals.[12] While this funding is a start, legal aid firms lack the financial resources to assist everyone in need of legal services. In fact, LSC estimated that it would cost $2,567,000,000 for legal aid firms to provide adequate legal assistance to all low-income individuals facing eviction.[13]

States have also taken measures to provide individuals with rental assistance. In Michigan, for example, the Michigan State Housing Development Authority (MSHDA) implemented the Eviction Diversion Program (EDP), which provides funding to qualified tenants in an attempt to keep these tenants in their homes.[14] MSHDA was granted $50 million for EDP, but the program expired at the end of 2020, leaving many tenants scrambling for funding once again. Moreover, the National Low Income Housing Coalition has estimated that at least $100 billion in rental assistance is needed to keep low-income tenants in their homes during the pandemic, so the various state rental assistance programs are essentially just a drop in the bucket.[15]

With high unemployment rates and limited access to legal representation, minority communities face a high risk of eviction. Given the CDC’s stated goal of increasing “the health security of our nation,” some opponents of the eviction moratorium questioned whether the CDC was overstepping its powers by promulgating the eviction moratorium regulation.[16] However, the CDC has pointed out that “[e]victed renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread.”[17] In many cases, evicted tenants move in with family or friends, and the CDC has recognized that as households become more crowded, the risk of spreading COVID-19 increases.[18] In fact, in its eviction moratorium regulation, the CDC cited studies indicating that “household contacts are estimated to be 6 times more likely to become infected by an index case of COVID-19 than other close contacts.”[19] This vicious cycle involving increases in COVID-19 and evictions has created worrying trends, particularly for minority populations, but certain government action may help alleviate some of these negative effects.[20]

II. Battling the Disparity

 Hispanic Americans and Black Americans both have COVID-19 mortality rates 2.7 times higher than White Americans.[21] The CDC explains that lack of access to health care, crowded living situations, and occupational exposure to the virus are all factors that increase an individual’s chances of contracting COVID-19, but all of these “risk markers” can be addressed through government involvement.[22] The CDC enacted its moratorium after Congress failed to take action following the expiration of the partial eviction moratorium that the CARES Act established.[23] While the current moratorium has allowed some tenants to stay in their homes, many officials view the moratorium as a temporary solution enacted to stop the bleeding.[24] 

Eviction moratoriums are a step in the right direction, but these moratoriums need to be enforced more stringently. States that have lifted their moratoriums have experienced COVID-19 rates 2.1 times higher than states that are continuing to implement moratoriums.[25] The United States is now in its tenth month of the pandemic, and the unemployment rate has remained above the historical average throughout this time.[26] The promise of a widely distributed vaccine is providing some light at the end of the tunnel, but Congress must continue to implement measures that protect people from eviction. The current eviction moratorium expires January 31, 2021, but COVID-19 will continue to create eviction problems beyond this expiration date. An extension and more stringent application of the moratorium will help curtail some of these eviction problems.[27]

Increased funding for rental assistance programs is also necessary. Unemployment stemming from the COVID-19 pandemic has disproportionately impacted minorities. While government spending has increased unemployment benefits, many unemployed individuals have been unable to obtain these benefits given the high volume of applicants, meaning that these individuals lack the means necessary to pay for housing. States have attempted to resolve this problem by providing direct funding to individuals who have fallen behind on rent, but these funds are limited. The federal government must allocate more funding to the states to ensure that this housing crisis does not continue to spiral out of control. Furthermore, the eviction moratorium must be stringently enforced by all courts so as to slow down this housing crisis. Minorities face a high risk of contracting COVID-19 due to housing related factors and systemic inequalities, so the government must take strong action to address the existing eviction epidemic.

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[1] See Jerusalem Demsas, We Know How to Prevent up to 40 Million People from Being Evicted. It’s up to Congress to Do It, VOX (Nov. 27, 2020, 9:00 AM), https://www.vox.com/21569601/eviction-moratorium-cdc-covid-19-congress-rental-assistance-rent-crisis.

[2] See Emily Benfer et al., The COVID-19 Eviction Crisis: An Estimated 30-40 Million People in America Are at Risk, Aspen Institute (Aug. 7, 2020), https://www.aspeninstitute.org/blog-posts/the-covid-19-eviction-crisis-an-estimated-30-40-million-people-in-america-are-at-risk/#comments.

[3] See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (2020).

[4] See H.R. 133, 133d Cong. (2020).

[5] See Chris Arnold, Why the CDC Eviction Ban Isn’t Really a Ban: ‘I Have Nowhere to Go,’ NPR (Dec. 20, 2020, 7:31 AM), https://www.npr.org/2020/12/20/947992198/why-the-cdc-eviction-ban-isnt-really-a-ban-i-have-nowhere-to-go (explaining that because courts are treating the regulation differently, “outcomes vary wildly depending on where people live or what court they end up in”).

[6] See Benfer et al., supra note 2.

[7] See id.

[8] Donald Moore, Poor and Minority Workers Are Least Likely to Be Able to Work from Home, Bloomberg (Mar. 20, 2020, 4:15 PM), https://www.bloomberg.com/news/articles/2020-03-20/poor-and-minority-workers-are-least-likely-to-be-able-to-work-from-home (“About 30% of white workers report being able to work at home, compared with 20% and 16% for black and Hispanic workers, respectively.”).

[9] See Ben Casselman, Why Unemployment Claims May Be Overcounted by Millions, N.Y. Times, Dec. 3, 2020 (explaining that “federal data on the unemployment insurance system has been plagued by errors, double counting and other issues. And even after the initial flood of layoffs slowed, the problems have only grown in recent weeks, in part because of an apparent spike in fraudulent claims for benefits.”).

[10] See Arnold, supra note 5 (explaining how the CDC eviction moratorium requires affirmative action from tenants, and many tenants who are not represented fail to understand that they must take action).

[11] See Raleigh D. Kalbfleisch, The Impact of the COVID-19 Pandemic on Legal Services, 33 J. DuPage Cnty. B.A. 17 (2020) (describing how the CARES Act provided LSC with $50 million, and the HEROES Act provided an additional $50 million).

[12] See LSC, How Legal Aid Works, https://www.lsc.gov/ (last visited Jan. 4, 2021).

[13] See Kalbfleisch, supra note 11, at 18.

[14] See MSHDA, Eviction Diversion Program (EDP), https://www.michigan.gov/mshda/0,4641,7-141-5555-533463--,00.html (last visited Jan. 4, 2021).

[15] See National Low Income Housing Coalition (Dec. 18, 2020), https://nlihc.org/coronavirus-and-housing-homelessness/eviction-update.

[16] See CDC, Mission, Role and Pledge (May 13, 2019), https://www.cdc.gov/about/organization/mission.htm.

[17] See Regulations to Control Communicable Diseases, 42 U.S.C. § 264 (2002).

[18] See Emily Benfer et al., The Coming Wave of Evictions Will Significantly Worsen America’s COVID-19 Crisis, The Appeal (Dec. 7, 2020), https://theappeal.org/the-coming-wave-of-evictions-will-significantly-worsen-americas-covid-19-crisis/.

[19] See 42 U.S.C. § 264.

[20] See Benfer et al., supra note 18.

[21] See APM Research Lab Staff, The Color of Coronavirus: COVID-19 Deaths by Race and Ethnicity in the U.S. (Dec. 10, 2020), https://www.apmresearchlab.org/covid/deaths-by-race.

[22] See CDC, COVID-19 Hospitalization and Death by Race/Ethnicity (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html.

[23] See Demsas, supra note 1.

[24] See id. (likening the moratorium to a “hastily applied bandage over a gaping wound”).

[25] See id.

[26] See News Release, BLS, The Employment Situation – November 2020 (Dec. 4, 2020), https://www.bls.gov/news.release/pdf/empsit.pdf.

[27] See Benfer et al., supra note 2.