News Coverage: Public Housing Can Work – The Atlantic
News Coverage: Public Housing Can Work – The Atlantic
New Article: Jaime Alison Lee, Rights at Risk in Privatized Public Housing, 50 Tulsa L. Rev. 759 (2015).
New Article: Samuel R. Bagenstos, Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities, 101 Cornell L. Rev. __ (forthcoming). Abstract below:
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
New Article: Lahny R. Silva, Criminal Histories in Public Housing, 2015 Wis. L. Rev. 375.
New Article: Hannah Weinstein, Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification, 62 UCLA L. Rev. 794 (2015). Abstract below:
Since the passage of the 1968 Fair Housing Act (FHA), there have been clear legal tools and strategies for combating segregation and promoting diverse cities and towns. While the FHA and zoning laws have been used successfully to ensure that formerly all-white city neighborhoods and towns are accessible to diverse residents, a new problem is emerging for those who value integrated neighborhoods: the reversal of white flight. The 2010 Census showed a strong demographic shift of white residents moving back to the core of cities while black and Hispanic residents are pushed to the cities’ perimeters. This racialized displacement is called gentrification, and there has been little analysis of how legal strategies could be used to challenge it in order to ensure that minority communities receive the benefits of revitalizing city neighborhoods and remain in their homes.
This Comment will explain the role gentrification plays in many cities and the legal strategies available for ensuring that cities remain diverse and affordable. It explores how attorneys can use zoning laws to preserve or create more affordable housing in cities even before the gentrification of a neighborhood is underway, environmental impact statements to fight proposed luxury developments that often are built near the beginning or middle of the gentrification process, and the FHA to preserve affordable housing and to challenge the building of luxury developments in neighborhoods that have undergone significant gentrification.
New Article: Myron Orfield, Milliken, Meredith, and Metropolitan Segregation, 62 UCLA L. Rev. 364 (2015). Abstract below:
Over the last sixty years, the courts, Congress, and the President—but mostly the
courts—first increased integration in schools and neighborhoods, and then changed
course, allowing schools to resegregate. The impact of these decisions is illustrated by
the comparative legal histories of Detroit and Louisville, two cities which demonstrate
the many benefits of metropolitan-level cooperation on issues of racial segregation,
and the harms that arise in its absence. Detroit, Michigan, and Louisville, Kentucky,
both emerged from the riots of the 1960s equally segregated in their schools and
neighborhoods with proportionally sized racial ghettoes. In 1974-75, the Supreme
Court overturned a proposed metropolitan school integration plan in Detroit, but
allowed a metropolitan remedy for Louisville-Jefferson schools to stand. Since
that time, Louisville-Jefferson schools and neighborhoods, like all the regions with
metropolitan plans, have become among the most integrated in the nation, while
Detroit’s schools have remained rigidly segregated and its racial ghetto has dramatically
expanded. Detroit’s experience is very common in the highly fragmented metropolitan
areas of the midwestern and northeastern United States. Black students in Louisville-
Jefferson outperform black students in Detroit by substantial margins on standardized
tests. Metropolitan Louisville has also grown healthier economically, while the City of
Detroit went bankrupt and both the city and school district were taken over by state
authorities. The Article concludes with a call to modernize American local government
law by strengthening the legal concepts of metropolitan jurisdictional interdependence
and metropolitan citizenship.
New Article: Rigel Christine Oliveri, Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis, Missouri L. Rev. forthcoming. SSRN 2015. Abstract below:
The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination.
St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis.
This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.
Millennials Getting Help From Parents Can Afford Homes – The Atlantic. [Making a fairly obvious point, but one people can forget.]