Affirmative action housing: a legal analysis of an ambitious but attainable housing policy

• Pages: 107-137
• Date: 01 April 2022
• Author: Micah Tempel
• Subject Matter: Derecho Público y Administrativo

AFFIRMATIVE ACTION HOUSING:

A LEGAL ANALYSIS OF AN AMBITIOUS

BUT ATTAINABLE HOUSING POLICY

Micah Tempel∗

Author’s Synopsis: American neighborhoods continue to be just as

segregated as they were decades ago. Our nation’s policies that have

attempted to address segregation have widely failed. The negative

consequences of continuing to have segregated housing in America are

plentiful, including large racial disparities in wealth, homeownership,

incarceration rates, and educational outcomes.

The fact that American neighborhoods are segregated is largely the

fault of our local, state, and federal governments. Through racist and

unconstitutional policies throughout the twentieth century, governments

are responsible for entrenching racial housing segregation throughout

the country.

This Article looks at a program proposal—named here as

Affirmative Action Housing—that would have the federal government

purchase White-owned homes for sale in neighborhoods that were

subjected to racial covenants, redlining, or other unconstitutional

policies. The program would have the government sell these homes to

Black purchasers at a fraction of the current market rate. This program

proposal is outlined in this Article only to the depth needed to run it

through a legal ana lysis. That legal analysis concludes that Congress

has the authority under the Thirteenth Amendment to enact this program,

that the program would be constitutionally valid under a Fifth

Amendment Equal Protection challenge, but that it would conflict with

the current understanding of the Fair Housing Act.

Ambitious policy ideas are often brushed aside as unworkable, or

too idealistic. However, it is important to take these ambitious policies

and explore how they could be made to fit within our existing legal

frameworks. When doing this, a bold and idealistic policy can become

more grounded and attainable.

∗ Micah Tempel, J.D. 2022, Washburn University School of Law. I would like to

thank Professor Andrea J. Boyack for her tremendous guidance and her role in sparking

my interest in housing law. I would also like to thank Professor Marsha Griggs for her

constant encouragement. Finally, this Article is dedicated to Lauren Coleman-Tempel,

PhD—thanks for showing me the way.

108 57 REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL

I. INTRODUCTION .......................................................................... 108

II. POLICY PROPOSAL .................................................................... 111

III. CONGRESSIONAL POWER .......................................................... 114

IV. EQUAL PROTECTION ................................................................. 118

V. FAIR HOUSING ACT ANALYSIS ................................................. 127

VI. ECONOMIC AND POLITICAL CRITICISMS ................................. 131

VII. POSSIBLE VARIATIONS .............................................................. 135

VIII. CONCLUSION .............................................................................. 137

I. INTRODUCTION

The era of Jim Crow may seem a distant historical memory, but

neighborhoods in the United States today are more segregated by race than

they have been at any point in the last few decades. 1 The country is

becoming more and more racially diverse, but neighborhoods are growing

more and more racially segregated.2 Residential racial segregation inflicts

significant harms on all Americans and is especially detrimental for peop le

living in segregated communities of color.3 Residential racial segregation

is both a symptom and cause of income and wealth inequality in America.4

The median household income in highly segregated communities of color

is approximately half of the median household income in highly

segregated White neighborhoods. 5 The median wealth of White

households is almost ten times the median wealth of Black households.6

1 See Stephen Menedian et al., The Roots of Structural Racism Project, OTHERING &

BELONGING INST. (June 21, 2021), https://belonging.berkeley.edu/roots-structural-racism.

2 See Tracy Hadden Loh et al., Separate and Unequal: Persistent Residential

Segregation is Sustaining Racial and Economic Injustice in the U.S., BROOKINGS (Dec. 16,

2020), https://www.brookings.edu/essay/trend-1-separate-and-unequal-neighborhoods-are

-sustaining-racial-and-economic-injustice-in-the-us/.

3 See generally Tracy Hadden Loh et al., The Great Real Estate Reset; A Data-driven

Initiative to Remake How and What We build, BROOKINGS (Dec. 16, 2020),

https://www.brookings.edu/essay/the-great-real-estate-reset-a-data-driven-initiative-to-

remake-how-and-what-we-build.

4 See Etienne Toussaint, Of American Fragility: Public Rituals, Human Rights, and

the End of Invisible Man, 52 COLUM. HUM. RTS. L. REV. 826, 852 (2020).

5 See Menedian et al., supra note 1, tbl.4.

6 See Kim berly Quick & Richard D. Kahlenberg, Attacking the Black-White

Opportunity Gap That Comes from Residential Segregation, CENTURY FOUND. (June 25,

2019), https://tcf.org/content/report/attacking-black-white-opportunity-gap-comes-residen

tial-segregation/?session=1; McIntosh et al., E xamining the Black-White Wealth Gap,