More than 50 years after passage of the Fair Housing Act, it’s time to sue the suburbs.
This is the fourth time Kennetha has been homeless.
She and her husband have five kids, the youngest of whom is just 8. They’ve been threatened with truancy for keeping their cameras off during remote learning — a grace they hoped would spare themselves some privacy over their living situation. At 37, Kennetha is haunted by an unfinished bachelor’s degree that has left her nothing but debt. Digging herself out of a financial hole has felt like a full-time job. Being without a stable home doesn’t help.
“It feels like we’re an expendable family — hopeless and voiceless,” she told me.
Kennetha tells me she grew up near Bordeaux, in the northwest part of Nashville, Tennessee. Her address puts her in the Haynes area, where researchers say the expected household earnings for a low-income child is just $20,000 a year. She would prefer to live in a suburb like Franklin. In parts of Franklin, a child who grows up in a low-income family would go on to have a household income of $53,000 a year.
“They don’t want us in that neighborhood,” Kennetha said. “It’s just a longstanding, unspoken thing. Franklin is meant for the rich, white people.”
Neighborhoods matter. As Vox’s Dylan Matthews reported, researchers Raj Chetty, Nathaniel Hendren, and Lawrence Katz found in 2016 that moving to a wealthier neighborhood not only increased the likelihood that kids would go to college, but also increased earnings by roughly 31 percent by the time they’d reached their mid-20s.
Part of what has kept Kennetha out of living in Franklin is exclusionary zoning. Single-family zoning, which means it’s illegal to build anything other than single-family homes, is prevalent in the suburb. Single-family homes are more expensive than apartments, townhomes, or duplexes, and that makes rent costly, too. Houses in Franklin go for an average price of $550,000, far above the average in Nashville of $335,000.
In some parts of Franklin, it is illegal to have a property smaller than 2 acres. And even in its “mixed residential district” — which allows for duplexes and multiplexes — the town has ordained minimum lot sizes that force builders to make units larger than they otherwise might have. And the bigger the apartment, the more expensive it is.
Exclusionary zoning laws essentially trap many Black families into low-income neighborhoods by pricing them out of richer ones.
Ending residential segregation would allow Americans to move from poor neighborhoods or cities to richer ones and allow lower-skilled workers to find better-paying jobs. To put a number on it, exclusionary zoning has artificially inflated the price of housing so much that one paper estimated that from 1964 to 2009, it lowered the aggregate growth by more than 50 percent.
This problem may feel like a tragedy of local governments and NIMBY-ism run amuck. But there’s actually a lot President Joe Biden’s administration can do about it right now. Biden can tie public concern over racial justice to tangible changes people can make at the local level. He can also tie federal dollars to mandates to reduce exclusionary zoning. And if all else fails, his administration can sue the jurisdictions that are knowingly perpetuating segregation.
Kennetha doesn’t have to be stuck in a high-poverty neighborhood, and lots of other Americans don’t either. Eliminating exclusionary zoning means Kennetha’s kids can grow up with the same opportunities as white children in Franklin.
A (very) abbreviated history of exclusionary zoning
More than 100 years ago, the city of Louisville, Kentucky, had a zoning ordinance that prohibited a white man from selling his property to a Black one if the neighborhood was already majority-white.
In 1917, the Supreme Court ruled in Buchanan v. Warley that this was unconstitutional, recognizing that the city might have a legitimate interest in the “promotion of the public health, safety, and welfare,” but that did not justify the “direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”
In what would become an enduring American tradition, white homeowners found other ways to keep their neighborhoods segregated.
According to a report by the Century Foundation, homeowners banded together and adopted covenants, or neighborhood contracts, that would prohibit their neighbors from selling homes to Black Americans: “in city after city, courts and sheriffs successfully evicted African Americans from homes that they had rightly purchased in order to enforce racially restrictive covenants,” write Richard Kahlenberg and Kimberly Quick. It wasn’t until 1948 that the Supreme Court deemed this practice unconstitutional.
Extralegal action (a nice way of saying racist mobs) still enforced segregation, though. As Richard Rothstein documented in his book The Color of Law, authorities from Richmond, California, to Levittown, Pennsylvania, allowed violent intimidation of Black families who attempted to move into segregated communities. “From 1917 to 1921, when the Chicago ghetto was first being rigidly defined,” Rothstein writes, “there were fifty-eight firebombings of homes in white border areas to which African Americans had moved, with no arrests or prosecutions — despite the deaths of two African American residents.”
This isn’t to say local governments gave up on segregation by design. As Buchanan was being argued in the nation’s capital, there were only eight American cities with zoning ordinances — 20 years later there were 1,246, according to economist William Fischel. While previous attempts at zoning had to do with safety concerns like fires or light-and-air regulations, Fischel writes that zoning from the 1910s onward “represented an important break with the past. The new features were the comprehensiveness of its map and the law’s presumption that single-family residences were to get the most protection.”
Comprehensive federal protections from housing discrimination wouldn’t come about until 1968. Following the assassination of Dr. Martin Luther King Jr., Congress passed the Fair Housing Act — an extraordinary piece of civil rights legislation that not only clarified that it was in fact illegal to discriminate due to race, color, national origin, religion, sex, familial status, and disability, but also that the government had the obligation to “affirmatively further fair housing.”
Despite this mandate, zoning laws proliferated that have entrenched de facto discrimination. Instead of explicitly barring people due to their race, these laws have taken the form of regulations like minimum sizes for new homes, which effectively ban more affordable dwellings. Localities have also weaponized seemingly neutral regulations that make the cost of development so exorbitant that the only profitable type of homes to build are large or luxury units.
There’s some disagreement about where the worst offenders of exclusionary zoning are today: In one index created and managed by researchers at the University of Pennsylvania’s Wharton School, New England and the mid-Atlantic region have the most stringent zoning regulations. The West Coast and Hawaii come second, and Southern and Midwestern states are considered to be the least regulated.
However, Thomas Silverstein, a lawyer at the Lawyers’ Committee for Civil Rights Fair Housing and Community Development Project, says, “Many suburban areas in the Midwest outside of major urban centers — whether it’s Cleveland, Detroit, Chicago, Milwaukee — suburb after suburb, you’ll find plenty of places where much less percentage of land is zoned for multifamily housing” than in coastal cities.
Housing rules are pretty bad everywhere — from the Northeastern states of Massachusetts and Connecticut to the West Coast supercities of San Francisco and Seattle as well as places like Cleveland and Phoenix. This is an American problem.
Convince who you can
Zoning has long been the domain of local government. But that doesn’t mean the Biden administration doesn’t have the ability to influence those decisions.
Many of the suburbs Biden won in the 2020 election count themselves as socially liberal or even progressive. For example, the hippie-esque town of Takoma Park, Maryland, in the DC suburbs votes overwhelmingly Democratic. It’s also almost exclusively zoned for single-family homes despite bordering the nation’s capital.
I grew up in Maryland, in a town not far from Takoma Park, and I can promise you that it’s one of the most outwardly progressive places I’ve ever been. Many of these suburbanites haven’t made the connection between their personal views on racial, social, and economic justice and the zoning policies that dictate who can and cannot live in their neighborhoods.
This is why one of the most important aspects to ending exclusionary zoning is making people aware of its effects. As president, Biden could help draw the racial justice connection for these communities by alleviating their concerns about property values, pointing to the environmental impact of sprawl, and making it clear that banning multi-family homes is in direct opposition to progressive goals around equal opportunity.
But this goes beyond appealing to suburbanites on progressive grounds. The overarching argument that needs to be made — not only to voters but to Democratic leaders in cities, counties, and states — is an economic one. Residential segregation shrinks the pot, and increasingly even more affluent, white college graduates are feeling the squeeze as they struggle to find housing in high-opportunity cities.
Darrell Owens, a housing activist and policy analyst at the pro-housing group California YIMBY, said that while discussing race is necessary, couching it in personal terms is most effective — like pointing out to a couple who want to build a small addition to their property that the same single-family zoning that keeps out Black Americans would preclude them from doing that as well.
“Calling my neighbors who are all wealthy, white homeowners racist is not helpful because as soon as you call a white person racist they kind of shut down and don’t really engage anymore,” he said. It will also “generally incite a quiet backlash at the ballot box,” which harms the effort to eradicate exclusionary zoning.
Put your money where your mouth is
While shifting public opinion is a vital step to sparking real change, it has to be coupled with policy.
Both fair housing lawyers and policy wonks say the Biden administration should work with jurisdictions to provide technical and planning assistance in its aims to rid itself of exclusionary zoning practices. To this end, Biden has endorsed providing $300 million in local housing policy grants, which would “give states and localities the technical assistance and planning support they need to eliminate exclusionary zoning policies.”
“Exclusionary zoning is a product of state law, and if we can get states to address that through funding incentives, I think that that could lead to some real change at the local level,” Phil Tegeler, executive director of the civil rights group Poverty and Race Research Action Council, told Vox. “Local governments have no inherent authority that’s not granted to them by state government.”
States care a lot about the general economic outlook and growth of their metro regions, whereas local officials are sometimes captured by the interests of local homeowners to the detriment of the broader region. Creating incentives and showing states how they are allowing localities to inhibit growth could spark a lot of change through state legislatures.
The administration should (as they have signaled they will do) reinstate the Affirmatively Furthering Fair Housing (AFFH) rule. In 2015, the Obama administration passed the rule, which required cities, counties, states, and public housing agencies receiving money from the Department of Housing and Urban Development (HUD) to come up with a plan to take “meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.”
The Trump administration rescinded this rule under then-HUD Secretary Ben Carson. But on January 26, Biden issued an executive order directing HUD to examine the effects that repealing the AFFH rule had on “HUD’s statutory duty to affirmatively further fair housing.”
Emily Hamilton, a senior research fellow at the think tank Mercatus Center, is skeptical that the AFFH rule “was ever going to be a very effective tool” since it didn’t require grantees to actually prove that they were increasing the number of low-income and minority households living in high-opportunity neighborhoods. Instead of just asking localities to come up with a “strategy” or a “plan” for how they’re going to improve, she suggested tying funding streams directly to outcomes, which would force them to show real progress before receiving money.
This change would need to be passed by Congress, where there’s already bipartisan support for tying funding from the popular Community Development Block Grant (CDBG) — a program that provides resources to large cities and counties to invest in housing, expanding economic opportunities for lower- and moderate-income families, and other broad urban development goals like infrastructure — to reporting on how grantees are reducing exclusionary zoning practices.
However, while this type of reform is likely to spur action from some jurisdictions, there’s a reason it won’t work when it comes to the worst offenders: Many of them don’t need the money.
For those localities that cannot be convinced, cajoled, or financially incentivized, more punitive action is necessary.
It’s time to sue the suburbs.
When all else fails, sue
We’ve talked about the carrots, now here’s the stick: The Biden administration must open up the floodgates for civil rights organizations, developers, and its own Justice Department to begin suing the worst offenders of exclusionary zoning.
Sara Pratt, the former deputy assistant secretary for fair housing enforcement and programs and senior adviser to the assistant secretary at HUD during the Obama administration, told Vox: “There’s a group who … embrace segregation and inequity, and they don’t want to spend a dime in the Black community and they would rather have their Latino population move out of town. For those people, that’s where enforcement becomes relevant — and good, strong enforcement.”
The disparate impact standard, the legal doctrine underlying the Fair Housing Act, ensures that plaintiffs don’t have to prove a policy was necessarily designed with the intent to discriminate; they can instead show that it had a discriminatory effect against a protected class. If the government claims an on-the-surface neutral reason for implementing the policy, the plaintiff must also show there was another way to achieve those goals that does not lead to the same discriminatory effect.
For example, in 1981, under the Fair Housing Act, the local branch of the NAACP sued the town of Huntington, New York, over its refusal to allow multi-family housing to be built in a section of town that was 98 percent white and zoned for single-family homes. The NAACP won, proving that the defendant not only implemented a policy with a racially discriminatory effect that would have “significantly perpetuated segregation” but also that the alleged reasons for doing so — traffic, parking, and fire problems, and inadequate play areas, among others — were “weak justifications.”
The Trump administration was overtly hostile to this form of analysis, and last year finalized a rule that created a much higher bar for plaintiffs in these types of lawsuits to clear. Under the new rule, the plaintiffs have to essentially “prove your discrimination case when you file it,” Lisa Rice, president and chief executive of the National Fair Housing Alliance, told the Washington Post in 2019. “They have elevated the bar so high that it is virtually insurmountable.”
While Biden has already taken the first step to repeal this rule, it’s not enough to ensure that cases are actually brought against unjust housing rules.
Pratt told Vox that staffing is a huge piece of this puzzle: “I think a well-staffed civil rights office can have a major influence over a period of time in changing the country’s patterns of segregation. I actually have no doubt of it.”
However, she said, the current staffing at HUD and its Office of Fair Housing and Equal Opportunity is “lacking the kind of expertise that will be needed to in order to dig into civil rights enforcement and compliance and will need to hire economists and planners and other experts [like sociologists] in addition to good, seasoned investigators.”
A HUD official told Vox that the department “will be working diligently in the coming months to rebuild the department. We are focused on strengthening HUD’s capacity by rebuilding the career workforce.”
In order for the department to staff up, lawmakers will need to appropriate more money, Silverstein told Vox. Lucky for Biden and Secretary-designate Marcia Fudge, Democrats now control both houses of Congress.
Once HUD builds up its staff, these experts can review jurisdictions where there are multiple and particularly egregious fair housing complaints, and provide detailed statistical analysis that can show how specific zoning decisions perpetuate racial discrimination.
A recent lawsuit against the town of Coxsackie, New York, seems like the type of case HUD could take up. A developer wanted to build 300 units of moderately priced housing, and the town fought back, making offensive remarks like comparing would-be residents to people on the TV show Cops. Plaintiffs are alleging discrimination on the basis of race, national origin, and familial status after the defendant “bowed to discriminatory opposition” and “adopted … a highly restrictive zoning ordinance,” which would block the development of these more affordable units, according to the complaint.
Suing is essentially a last resort: Communities immune to racial justice appeals, economic logic, and the financial incentives to allow more affordable housing need to be presented with a real threat if they are to remedy their worst policies.
Silverstein told Vox that the DOJ “institutionally has tended not to litigate at the cutting edge of these issues,” adding that the department is sensitive to potentially losing and has frequently avoided cases that might push the case law forward.
But if Biden’s DOJ gets serious about taking up lawsuits, it can set a precedent and deter other localities against exclusionary zoning practices and encourage them to work with HUD to develop a plan that fits their localities’ needs. These types of lawsuits are extremely expensive for localities to defend against, not to mention the bad press that comes with being sued for discrimination.
Being serious about eliminating exclusionary zoning means doing everything, all at once. It’s convincing whoever can be convinced. It’s throwing financial incentives at localities. And it’s taking punitive action against those places immune to all other methods of persuasion.
Fixing this problem requires a commitment not only to enforcing the letter of the Fair Housing Law, but also to changing the way people think about what a good neighborhood looks like and emphasizing that a thriving country means one that embraces change, diversity, and growth.
Kennetha, who is now building a nonprofit to help people like herself get back on their feet, told Vox that the lack of help from her elected officials is disheartening: “It feels like your voice is just noise, especially as a Black woman speaking,” she said.
If all her local officials are hearing is noise, it’s time for the Biden administration to turn up the volume.
Author: Jerusalem Demsas