Abstract

Excerpted From: Allison M. Freedman, The Eviction Caste System, 67 Boston College Law Review 1503 (May 2026) (3619 Footnotes) (Full Document)

The U.S. Constitution does not explicitly provide for a right to housing, and the Supreme Court has made clear that housing is not a fundamental right. Similarly, individuals facing housing insecurity from an eviction have not historically been part of a suspect class. This is because eviction is frequently viewed in a vacuum, and treated simply as a symptom of poverty. The Supreme Court has repeatedly held that poverty is not a suspect classification.

This is true despite widespread recognition of the importance of housing. In 1949, Congress enacted a broad Housing Act with the goal of providing “a decent home and suitable living environment for every American family.” And most Americans agree that housing is a universal necessity. Notwithstanding the consensus around the importance of housing and the vulnerability of evicted populations both at an individual and systemic level, there are few constitutional protections for these individuals.

This Article disrupts the simplistic narrative that eviction is an individualistic symptom of poverty. Instead, it looks at evictions from a systemic perspective, drawing on historical and contemporary discrimination against certain minority populations who most frequently face evictions today. It argues that recognizing the systemic nature of evictions opens the door to constitutional protections for some evictees. In doing so, the Article captures the public sentiment that housing is a universal need, and offers a potential solution to one aspect of the national housing crisis. It also recognizes the importance of collective power for evictees, who frequently must defend against individual eviction cases, rather than bringing affirmative litigation to address systemic issues.

To accomplish this, the Article builds a novel framework called the Eviction Caste System. It first looks at the origins of the system--discriminatory housing law and policy initiatives throughout the 1900s, which frequently relegated certain minority populations to rentals rather than homeownership, thereby excluding these individuals from generational wealth building. It then explores contemporary factors that have solidified the system, such as the rise of tenant screening companies and artificial intelligence. These companies harvest eviction court records, disregard whether a tenant won or lost their case, and sell inaccurate and incomplete data to landlords who rely on it when deciding who to rent to. This process brands tenants with a “Scarlet E,” which carries lifelong consequences that are frequently passed down to future generations.

Against the background of the systemic nature of evictions, the Article turns to defining caste in the eviction context. It draws on definitions and teachings about caste from other arenas, as well as constitutional and civil rights frameworks aimed at antidiscrimination to propose three castes that comprise the system--the Preferred Property Caste, the Perpetual Renter Caste, and the Scarlet E Caste. Those subjected to historically discriminatory housing practices and carrying the “Scarlet E” occupy the lowest rung of the caste system, having access only to poor-quality housing in under-resourced areas.

Finally, the Article discusses constitutional and legislative protections for the Scarlet E Caste. These protections only become apparent when viewing evictions in a historical and systemic context. The viewpoint shift offered by this Article thus allows protection of an exceedingly vulnerable (although not suspect) class, and a critically important (although not fundamental) right. And it moves the needle toward addressing the pressing housing crisis across the United States.

The Article proceeds in four parts. Part I defines the three castes that comprise the Eviction Caste System by tracing the discriminatory history of housing policy in the United States, with a focus on the eviction process, its origins, and the tenant screening processes that brand tenants with the “Scarlet E” and create barriers to future housing access. Part II discusses the markers of a caste system, drawing on Fourteenth Amendment jurisprudence, teachings from the South Asian caste system, human rights law, and the work of Isabel Wilkerson. Part III defines the Eviction Caste System, and demonstrates how the eviction and tenant screening processes have created, maintained, and perpetuated the system, with “Scarlet E” tenants banished to the lowest level of the system. And Part IV proposes constitutional and legislative protections for certain evictees based on the historical and systematic nature of evictions, as recognized by the Eviction Caste System.

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The creation of an Eviction Caste System began with racialized housing law and policy choices in the United States and has been subsequently solidified through the eviction system and more recent tenant screening policies. By naming and defining this System, it becomes possible to recognize the Scarlet E Caste as a group deserving of heightened protections. Reimagining Equal Protection and Fair Housing Act jurisprudence to encompass this group brings society closer to dismantling the Eviction Caste System. Simultaneously, this reenvisioning paves the way for collective power through constitutional and legislative protections that can begin to break down barriers currently excluding some of our most vulnerable populations from what Congress and the public has recognized should be a decent home for every American family.

Associate Professor of Law, University of New Mexico School of Law.