New Article: Maia Hutt, This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act, Columbia 53 J. L. & Soc. Prob. 391 (2018).
Over 2.2 million low-income households participate in the federal Housing Choice Voucher (HCV) program. Voucher holders, who are disproportionately people of color and individuals with disabilities, are frequently discriminated against or denied housing by landlords. This Note argues that prospective tenants who are rejected by landlords for participating in the HCV program have a right of action against landlords under the Fair Housing Act’s disparate impact provisions. The Supreme Court’s recent decision in Inclusive Communities provides the necessary framework for evaluating these claims, and suggests that federal courts’ historical rejection of disparate impact claims brought by voucher holders is no longer good law. Integrating state and local source of income protection laws into the Inclusive Communities burden-shifting resolves the tension between state and federal approaches to source of income protection, and vitiates the rights of voucher holders.
New Article: David B. Oppenheimer, Dr. King’s Dream of Affirmative Action, U.C. Berkeley Public Law Research Paper (2017). Abstract below:
President Trump and Attorney General Sessions have decided to challenge affirmative action policies in higher education as a form of discrimination against white people. We should expect them to soon be citing Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive. We should also expect them to propose that class-based affirmative action replace race-based affirmative action, and again cite Dr. King, as a supporter of remedies for poverty, regardless of race. Indeed, the contemporary debate about affirmative action increasingly pits those who support race-based affirmative action against those calling for class-based affirmative action, which is frequently described as a “color-blind” alternative. And in support of this alternative to race-conscious affirmative action, its proponents often invoke Dr. King as a supporter of color-blind affirmative action.
The truth is more complicated, and infinitely more interesting and instructive. While Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was an active supporter of both kinds of affirmative action – race-based and class-based. As a supporter of race-conscious affirmative action, he spent much of the last six years of his life actively promoting it, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded racial quotas through the employment of Black American workers in proportion to their number in a workforce, neighborhood or city. With regard to class-based affirmative action Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages. To those who invoke Dr. King as a supporter of color-blindness and an opponent of race-conscious affirmative action, and to those who advocate race-conscious affirmative action over class-based affirmative action, nearly fifty years after his murder Dr. King’s voice continues to send us an important message: we don’t need to choose one approach over the other; we can and should do both.
New Article: David Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law, 101 Marq. L. Rev. 601 (2018). Abstract below:
Each year, psychological trauma arising from community and domestic violence, abuse, and neglect brings profound psychological, physiological, and academic harm to millions of American children, disproportionately poor children of color. This Article represents the first comprehensive legal analysis of the causes of and remedies for a crisis that can have lifelong and epigenetic consequences. Using civil rights and local government law, this Article argues that children’s reactions to complex trauma represent the natural symptomatology of severe structural inequality—legally sanctioned environments of isolated, segregated poverty. The sources of psychological trauma may be largely environmental, but the traumatic environments themselves are caused by spatial inequality. This Article sets forth a theory of structural inequality that demonstrates the importance of place-based differences in institutional functioning and the role of such disparities in producing the neurobiological, psychological, and behavioral outcomes comprehensively described in the literature from those disciplines (including the results of an original study of Newark, New Jersey school children). International analogies show how similarly human beings process traumatic events. This alternative legal analysis of child trauma compels a different remedial approach to both intervention and prevention. It argues that interventions like special education reform are necessary but problematic because they risk pathologizing the African American poor and exhausting institutional capacity. Instead, it provides a framework for prevention focused upon increasing mobility options and reforming local institutions.
Posted in Articles, Children, Economic Mobility, housing, Human Rights, Inequality, Legal Academia, Measuring Poverty, Race, Rural Issues, Urban Issues, War on Poverty
News coverage of poverty: Glenn Thrush, With Market Hot, Landlords Slam the Door on Section 8 Tenants, NYTimes.com, Oct. 12, 2018.
New Article: Bernadette Atuahene, “Our Taxes Are Too Damn High”: Institutional Racism, Property Tax Assessment, and the Fair Housing Act, 112 Nw. U. L. Rev. 1501 (2018). Abstract below:
To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property’s market value. Between 2009 and 2015, the City of Detroit assessed 55%–85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan’s Wayne County where African-Americans comprise 70% or more of the population—Highland Park and Inkster—have similarly experienced systemic unconstitutional assessments and unprecedented property tax foreclosure rates. This Essay explores whether property tax administration policies in Wayne County disparately impact African-Americans in violation of the Fair Housing Act. I find that unconstitutional assessments and property tax foreclosures occur at a significantly higher rate in Wayne County’s predominately African-American cities than in its predominately white ones. More importantly, the county’s property tax equalization policy has failed to correct these disparities, leading to a violation of the Fair Housing Act. Unjust property tax administration was frequently used to dispossess African-Americans of their lands and other property during the Jim Crow era. Although the motives may be different, this deplorable form of institutional racism is resurgent in Michigan.
New blog post: Jennifer Medina, A Novel Solution for the Homeless: House Them in Backyards, NYTimes.com, Oct. 29, 2018.
New Article: Wendell Pritchett & Shitong Qiao, Exclusionary Megacities, 91 So. Cal. L. Rev. 3 (2018) Forthcoming. Abstract below:
Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” Yet the growth-dominated megacities of China demonstrate that relying on business and political elites to provide affordable housing is a false hope. Our comparative study of the homeowner-dominated megacities of the U.S. and growth-dominated megacities of China demonstrates that the origin of exclusionary megacities is not a choice between growth elites and homeowners, but the exclusionary nature of property rights. Our study reveals that megacities in the two countries share a property-centered approach, which prioritizes the maximization of existing property interests and neglects ultimate housing consumers’ interests, resulting in unaffordable housing. Giving housing consumers a voice in land use control and urban governance becomes the last resort to counteract this result. This comparative study shows that the conventional triangular framework of land use comprising government, developers, and homeowners is incomplete, and argues for a citizenship-based approach to urban governance. The essential component of this approach is clearly defining the boundary between the political and property markets, facilitating citizens’ equal access and participation in the political market that set general parameters for development while leaving individual development decisions to the property market.
UCLA Symposium on Gentrification, Displacement, and Dispossession.
- K-Sue Park, Dispatches from the Other Side of Development.
- Scott L. Cummings, Living Poor in the Affluent City.
- Alex Scott, Los Angeles, Displacement, and the Rise of Airbnb.
- Ysabel Jurado, Losing Historic Filipinotown.
- Soham Dhesi, Protecting Mobile Homes as Affordable Housing.
- Daniel Foster, The Limits of Land Reform: A Comment on Community Land Trusts.
- Doug Smith & Katie McKeon, Public Land for Public Good: How Community Groups Are Influencing the Disposition of Public Land to Help Address the Affordable Housing Crisis.
- Mia Lattanzi, Local Control of Land and Water Resources: Rethinking California’s Eminent Domain Standard.
- Laylaa Abdul-Khabir, From Chavez Ravine to Inglewood: How Stadiums Facilitate Displacement in Los Angeles.
- Tyler Anderson, Terra Graziani, & Kyle Nelson, We Shall Not Be Moved: Practitioners’ Perspectives on Law and Organizing in Response to California’s Housing Crisis.
New Blog Post: Nikita Stewart & Sarah Blesener, How a Garden For the Poor Became a Playground For the Rich, NYTimes.com, Oct. 18, 2018.
New Article: John Infranca, The New State Zoning: Land Use Preemption amid a Housing Crisis, Boston College L. Rev. forthcoming 2019. Abstract:
Commentators have long decried the pernicious effects that overly restrictive land use regulations, which stifle new development, have on housing supply and affordability, regional and national economic growth, social mobility, and racial integration. The fragmented nature of zoning rules in the United States, which are set primarily at the local level, renders it seemingly impossible to address these concerns systematically. While there have been some efforts to address local exclusionary tendencies and their suboptimal effects by means of greater state control, these efforts, which remain contentious, have been limited to just a few states.
In the past few years a new wave of state interventions in local zoning has appeared. These interventions are motivated in part by the harsh reality of housing shortages and skyrocketing costs in significant parts of the country, which have made housing affordability a salient issue for a broader segment of the population. At the same time, states have grown increasingly willing to preempt local governments across a range of policy realms.
This Article contends that the confluence of these and other factors suggests the potential for a recalibration of the balance of power between state and local governments in the realms of housing and land use regulation. State governments are increasingly displacing local restrictions on new development, mandating that municipalities permit certain forms of housing, and providing incentives for local governments to adopt certain forms of housing. I argue that the current housing crisis justifies bold new forms of state intervention. Such interventions should expressly preempt narrow elements of local law, rather than, as an earlier generation of interventions did, adding additional planning requirements, procedural steps, or potential appeals. At the same time, these interventions can and should provide clear mechanisms for addressing significant countervailing local interests.