New Article: George Lipsitz, “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. Rev. 1746 (2012). Abstract below:
In our society, individual acts of intentional discrimination function in concert with historically created vulnerabilities; these vulnerabilities are based on disfavored identity categories and amplify each injustice and injury. Although anyone can be a victim of housing discrimination, women of color suffer distinct collateral injuries from barriers to housing that are collective and cumulative in nature. At the intersections of race and gender, the welfare and dignity of black women and Latinas are undermined by the national failure to enforce fair housing and fair employment laws, by the concentration of poverty in neighborhoods inhabited largely by blacks and Latinos, by the criminalization of poverty, by the proliferation of punishments inside the criminal justice system, and by the expansion of the collateral consequences of arrests and criminal convictions in society at large. Produced by a plethora of public policies and private actions, these injuries entail more than denials of rights and resources to individuals. They evidence the existence and extent of a concentrated political attack on communities of color. Women play a central role in these practices because punitive policies are almost always legitimated by allegations of nonnormative behavior by poor people and people of color, allegations that occlude the actual intersectional vulnerabilities created by multiple forms of raced and gendered exploitation inscribed inside the routine practices of contemporary capitalism. This Article delineates how housing and employment discrimination combine to make black women and Latinas particularly vulnerable to surveillance, arrest, and incarceration. It shows how race and gender discrimination make reentry into society especially difficult for women ex-offenders from aggrieved communities of color. It establishes the historical causes and consequences of moral panics about the putative misbehavior of women of color, and it concludes by proposing a combination of litigation, legislation, and social mobilization to address the execrable consequences of intersectional discrimination and mass incarceration.
[Important] News Coverage: Emily Badger & Margot Sanger-Katz, Which Poor People Shouldn’t Have to Work for Aid?, N.Y. Times, May 15, 2018. [Covering the racism of Michigan’s work requirements and rural exemptions.]
[Self-promotion] New Long Op-Ed / Short Essay: Ezra Rosser, Medicaid Waivers and Political Preferences for Indians, Harvard Law Review Blog, May 16, 2018.
New Article: Zachary C. Freund, Note, Perpetuating Segregation or Turning Discrimination on its Head? Affordable Housing Residency Preferences as Anti-Displacement Measures, 118 Colum. L. Rev. 833 (2018). Abstract below:
Affordable housing residency preferences give residents of a specific geographic “preference area” prioritized access to affordable housing units within that geographic area. Historically, majority-white municipalities have sometimes used affordable housing residency preferences to systematically exclude racial minorities who reside in surrounding communities. Courts have invalidated such residency preferences, usually on the grounds that they perpetuate residential segregation in violation of the Fair Housing Act.
More recently, as gentrification spurs rising housing costs in many formerly majority-minority urban neighborhoods, cities including New York and San Francisco have implemented intramunicipal residency preferences as a mechanism for mitigating gentrification-induced displacement. These cities’ policies offer residents preferred access to affordable housing units in their own neighborhoods, relative to both nonresidents and to city residents living in other neighborhoods. Proponents of these policies contend that their use on an intracity level preserves rather than excludes minority communities, thereby inverting the traditional discriminatory application of such preferences. Opponents of the policies argue that any residency preference implemented in a racially segregated area necessarily perpetuates segregation and violates the law.
This Note examines how neighborhood-level, anti-displacement residency preferences should be understood under the relevant law. It observes that the neighborhood-level residency preference is a potent anti-displacement tool that suffers from an emerging mismatch between fair housing goals and fair housing law. Neighborhood-level anti-displacement residency preferences likely suffer from the same legal defects as intercity preferences used to exclude minority applicants, and may even be at heightened risk because they are more likely to be expressly race-conscious. Despite the fact that these preferences aim to promote accessible affordable housing for low-income and minority residents, they do so in response to displacement pressures that the Fair Housing Act does not contemplate and in a manner that arguably clashes with its anti-segregationist objective. If neighborhood-level residency preference policies are to be effectively and legally utilized to address issues of urban displacement, either courts’ approaches to such policies or the policies themselves must evolve.
New Article: James Gray Pope, Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery, 65 UCLA L. Rev. 426 (2018). Abstract below:
This Article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Surprisingly, in light of present-day uncertainty, the historical record is relatively clear on this issue. Members of the Thirty-Ninth Congress generally agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The Democrats and their allies claimed that it outlawed only the core incidents of slavery, for example chattelization and physically or legally forced labor. But their Republican opponents maintained that it banned a far broader set including—at a minimum—denials of the rights enumerated in the Civil Rights Act of 1866, namely to enjoy the same rights to make contracts, own property, and participate in court as were enjoyed by white citizens. Until 1968, courts also assumed that the issue of badges and incidents hinged on Section 1. Contrary to the received wisdom, Jones v. Alfred H. Mayer Co., decided in that year, announced for the first time that the identification of badges and incidents might be a task for Congress under the Section 2 power to enact “appropriate” enforcement legislation. Although the Court has maintained for nearly half a century that the question is “open,” the practical reality is that lower courts honor the narrow reading of Section 1 initially proposed by the unsuccessful Democratic opponents of both the Amendment and the 1866 Civil Rights Act, and later introduced to jurisprudence in the now-discredited Jim Crow decisions of Plessy v. Ferguson and Hodges v. United States. It is not too late to resolve the official uncertainty by embracing the Republican reading. This choice would restart the process, commenced by the Thirty-Ninth Congress but derailed in Plessy and Hodges, of determining what it means to ensure that neither slavery nor involuntary servitude “shall exist.” The Article concludes by exploring some of the basic interpretive issues and their implications for the constitutional law of racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.
New Article: Renee Hatcher, The Everyday Economic Violence of Black Life, Journal for Affordable Housing and Community Development Law, Volume 25, Number 3, 2017. Abstract below:
A book review of Ferguson’s Fault Lines by Kimberly Norwood. In analyzing the thirteen chapters, the review highlights the central themes of spatial racism, uneven development, and discriminatory practices in Ferguson and the greater St. Louis metropolitan region. In doing so, the review argues that discriminatory development practices create unequal access to education, employment, transportation, health outcomes, and life expectancies, based on race and zip code. These development practices also give rise to and enable discriminatory policing.
The review ultimately argues that state-sanctioned discriminatory policies of both physical and economic violence are intertwined, cyclical, and compounding. In looking to solutions, I advocate that community-driven strategies that address historical discrimination and inequality will move the needle towards progress. By the same token, local housing and development policy makers should employ a racial equity impact assessment for all future investments and policies and take affirmative action to address the geography of inequality that they have helped to create and sustain.
Report: Ryan Cooper & Matt Bruenig, Foreclosed: Destruction of Black Wealth During the Obama Presidency (2017) [about housing wealth].
New Book: Richard H. Sander, Yana A. Kucheva, and Jonathan M. Zasloff, Moving toward Integration: The Past and Future of Fair Housing (2018). Overview below:
Reducing residential segregation is the best way to reduce racial inequality in the United States. African American employment rates, earnings, test scores, even longevity all improve sharply as residential integration increases. Yet far too many participants in our policy and political conversations have come to believe that the battle to integrate America’s cities cannot be won. Richard Sander, Yana Kucheva, and Jonathan Zasloff write that the pessimism surrounding desegregation in housing arises from an inadequate understanding of how segregation has evolved and how policy interventions have already set many metropolitan areas on the path to integration.
Scholars have debated for decades whether America’s fair housing laws are effective. Moving toward Integration provides the most definitive account to date of how those laws were shaped and implemented and why they had a much larger impact in some parts of the country than others. It uses fresh evidence and better analytic tools to show when factors like exclusionary zoning and income differences between blacks and whites pose substantial obstacles to broad integration, and when they do not.
Through its interdisciplinary approach and use of rich new data sources, Moving toward Integration offers the first comprehensive analysis of American housing segregation. It explains why racial segregation has been resilient even in an increasingly diverse and tolerant society, and it demonstrates how public policy can align with demographic trends to achieve broad housing integration within a generation.
Op-Ed: William Julius Wilson, Don’t ignore class when addressing racial gaps in intergenerational mobility, Brookings Social Mobility Memo, April 12, 2018.