The subversion of fair housing law by pernicious zoning ordinances, part 1

I'm not a religious person but I think there is genuine evil in this world. And one of those evils is the persistence of segregation fifty years after the Civil Rights movement of the 1960s.

2010 Census Block Data showing distribution of population by race in Boston (source)

One of the more important Supreme Court decisions of the year was handed down last month. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. ruled that 'disparate-impact' claims are valid under the Fair Housing Act of 1968. This ruling ensures that an important tool in the fair housing toolbox continues to be usable: the notion of 'disparate-impact', or that government policies can have an unstated yet implicit racially-biased effect.

The Inclusive Communities Project brought suit over how the Texas Department of Housing and Community Affairs distributes tax credits for low-income housing. The Department’s policy, the group claimed, causes almost all affordable units to be built in racially segregated low-income areas, providing minorities with few opportunities to move to integrated or wealthier areas. Though the creators of the tax credit policy had no racial intent, according to the Inclusive Communities Project the results of the policy confined minorities to segregated areas.

From the opinion:

Recognition of disparate-impact claims is consistent with the FHA’s central purpose. See Smith, supra, at 235 (plurality opinion); Griggs, 401 U. S., at 432. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation’s economy. See 42 U. S.  C. §3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); H.  R.  Rep., at 15 (explaining the FHA “provides a clear national policy against discrimination in housing”).  These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington, 488 U. S., at 16–18 (invalidating zoning law preventing construction of multifamily rental units); Black Jack, 508 F. 2d, at 1182–1188 (invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St.  Bernard Parish, 641 F.  Supp. 2d 563, 569, 577–578 (ED La. 2009) (invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only “‘blood relative[s]’” in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52–53 (discussing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA’s objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g., Huntington, supra, at 18. Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

This is an important ruling if and only if the Federal government backs it up by strengthening and enforcing the regulations based on the Fair Housing Act. Unfortunately, over the past four decades, successive administrations including the current one have largely done nothing or acted to undercut the law. That might change now, with the Supreme Court's fresh ruling.

This is significant if it is used to reverse some of the most pernicious and widespread zoning code techniques that effectively cause economic and racial segregation through disparate-impact. Zoning has long been about exclusion, even continuing after explicitly racial zoning was struck down by the courts. From Dead End, a book about the history and effect of sprawl, by Benjamin Ross:

[Euclid v Ambler, 1926] moved quickly beyond the specifics of Ambler’s property; from the beginning, the principle of zoning was at stake. And the main principle was the exclusion of people, the people who lived in apartment houses. “In the last analysis,” Judge Westenhaver wrote perceptively in his opinion, “the result to be accomplished is to classify the population and to segregate them according to their income or situation in life.” The Supreme Court saw the issue similarly. The village’s power to keep out factories was not really in doubt, it observed: “The serious question in the case arises over the provisions of the ordinance excluding from residential districts apartment houses, business houses, retail stores and shops, and other like establishments.”

And The Racial Origins of Zoning in American Cities:

"What began as a means of improving the blighted physical environment in which people lived and worked," writes Yale Rabin, became "a mechanism for protecting property values and excluding the undesirables." The two interest groups that were regarded as the undesirables were immigrants and African Americans.

While instances of explicit racial exclusion through zoning and restrictive covenants are generally overturned by the courts, that has not been the primary mechanism through which segregation is created and maintained. Instead, the racially biased effect is engineered through neutral-seeming zoning codes that provide an aura of plausible deniability. For example, a zoning code might mandate a minimum lot size, such as a quarter-acre, for construction of housing, while forbidding anything larger than a single-family home to be built. None of the language used has any explicit mention of race or class, but the net effect is to restrict residency on that property for only a single family capable of affording a quarter-acre of land. In any reasonably attractive neighborhood, the price of that 10,860 square feet of land is beyond the reach of low- or middle-income families, thus effectively excluding all but the wealthy.

That is not the only type of regulation that is used to make land and housing unaffordable. For example, onerous requirements for front yard, back yard, and side yard ensure that only those people wealthy enough to afford 'conspicuous waste' can live there. Minimum parking quotas force residents to pay for parking spaces whether they use them or not. And, most infamously, the prohibition against apartments or multi-family housing in many zones makes it impossible to divide the cost among several families. Generally, the net effect of these regulations is either implicitly or explicitly intended to lower density. One glance at the population distribution map above should confirm that there is more than a passing correlation between 'low density' and 'overwhelmingly white'. That is disparate-impact at work: it is subtle in the wording of zoning codes, but the net effect over time is clear. The question now is: will the government begin to tackle the inequities created by local zoning codes? And how?

[continued in part 2]