A Brief Comment on the Symposium Articles.

• Author: Sander, Richard
• Position: Response to article in this issue, p. 677, 691, 717, 749, 759 - Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration

CONTENTS INTRODUCTION I. PROFESSOR KRISTIN BARNES II. PROFESSOR JOHN LOGAN III. PROFESSOR CATHY MANSFIELD IV. PROFESSOR ROBERT SCHWEMM 783 A. Is housing integration inevitable? B. Does fair-housing enforcement continue to be vitally important? V. PROFESSOR LIND CONCLUSION: INTO THE FUTURE INTRODUCTION

We are very grateful to Professor Jonathan Entin and the editors of the Case Western Reserve Law Review. They not only conceived and hosted our November symposium with flawless logistics and brought together a wonderful group of scholars, but they have also given us the opportunity for both the first and last word in this symposium issue. We will not abuse this privilege and will limit ourselves to a few comments on our five colleagues' articles.

1. PROFESSOR KRISTIN BARNES

   Among all the published commentary on Moving Toward Integration, we most appreciated Professor Barnes's piece, not because she uniformly agrees with us--she does not--but because she engages our work in a spirit of improving it. She likes our approaches of tackling housing segregation directly, and of trying to analyze and break apart the various reasons why segregation persists to understand how those factors causally interact. She also likes the specificity of our remedies and, we think, embraces the general methodology of coordinating remedies into an overall anti-segregation strategy. But Professor Barnes believes that we are minimizing, or at least overlooking, some of the current institutional structures that perpetuate both segregation and discrimination.

   A good example is our treatment of the "banking problem." In our book, we argue that the fair-lending performance of many conventional banking institutions has improved substantially, but that segregation produces types of market failure--such as an "underbanked" inner city--that perpetuates lending disparities. (1) Our proposed remedy is to generate, through private-public partnerships, a new breed of community-based lenders that have an explicit mission of bringing more African-American and Hispanic households into the conventional banking and credit system, and of coordinating their work with other partners to foster specific community-development goals. (2) Barnes approves of much of this, but also believes that this strategy lets bad actors like Wells Fargo off the hook too easily and underestimates the power of conventional players to stymie real progress. In all of this, she is probably right. It certainly makes sense that, in any specific metropolitan area where desegregation reform efforts are underway, the reformers should closely scrutinize the individual performance of major financial institutions. Her critique got us thinking that if a team of reformers (including city officials) examined the comparative performance of the big banks and found a poor-performing outlier, then litigation similar to the Miami-Wells Fargo lawsuit (3) could serve several helpful ends. If successful, the suit might provide much-needed funding for the community-banking capitalization. It would serve as a mechanism for improving accountability among poor performers and it would announce the city's interest in promoting partnerships and cooperation with the good performers.

   This is just one of several instances where we think Professor Barnes's criticisms are not only sound but highly constructive and could, through the sort of collaborative brainstorming we discuss in the final section of this article, materially improve and make more tangible our proposed solutions. This is true of her comments on "mobility grants," and it is true of her extended and insightful discussion of disparate-impact liability, which we discuss further below. (4)

   In keeping with her general theme that Moving Toward Integration errs on the side of optimism, Professor Barnes expresses some skepticism, and raises some questions, about our claim that Anglos (i.e., non-Hispanic whites) are increasingly receptive to racial integration. Here we take exception. Barnes suggests that our findings rely "heavily" on the work of Ingrid Gould Ellen; but while we are in debt to Ellen's pioneering research on this issue (5) in the late 1990s, (and her continuing important contributions since then) our work goes beyond Ellen's in many ways and draws primarily upon data sources not available to Ellen. (6) We show that the proportion of Anglo movers who choose to live in racially integrated neighborhoods has more than doubled over the past generation. We show that the vast majority of these moves are not precipitating the sort of reverse tipping one associates with gentrification. And we show that in most of those metropolitan areas where segregation has fallen substantially, neighborhood racial "tipping" has disappeared, and many neighborhoods have been stably integrated for many decades. The evolution of white behavior has been dramatic and does justify some optimism for the future.

2. PROFESSOR JOHN LOGAN

   Although probably not well known to most law-review readers, Professor Logan is by many measures the most influential social scientist writing about housing segregation today. He led a team of scholars to create the first geographically detailed database on racial residential patterns in late-nineteenth- and early-twentieth-century American cities, and then used that data to test sophisticated theories about the drivers of early segregation. (7) He has also changed the way sociologists see contemporary housing segregation through the work on "global neighborhoods" that he discusses here.

   As we noted in our introduction, and as Logan explains in his article, legal scholars of fair housing do not take adequate account of the findings of social scientists or of how economic and demographic forces shape segregation outcomes. Logan observes:

   [T]he patterns of change and persistence of segregation are unlikely to be influenced as much by public policy as by more profound structural changes in the white and minority populations. We are not arguing against fair housing efforts, and we suspect that these have played an indirect role in creating the conditions for neighborhood diversity. Instead we wish to make the case that fair housing advocates need to be aware of and seek to leverage the underlying population shifts that create new potential for reducing segregation. (8) We agree with Logan in criticizing the tunnel vision of legal scholars. In many, if not most, accounts by legal scholars, there are really only three forces of interest: corporate greed, racial hostility of whites, and the public sector, which sometimes aligns with greed and racism and sometimes fights the good fight. The evolution of urban segregation is largely cast in terms of the interplay among these three forces. Logan's example of the rise of global neighborhoods is just one example of why this is far too narrow a view.

   But we think that a similar criticism can be laid against sociologists, who are guilty of a reverse tunnel vision that fails to take seriously the effects of public policy. (9) While long-term demographic trends are vitally important--and in Moving Toward Integration, we document several of these and show why they mattered--twice in the twentieth century, patterns of African-American urban mobility changed quickly and dramatically. The first started in 1948, when the U.S. Supreme Court sharply limited the enforceability of racially restrictive covenants (10); the second around 1970, when the federal Fair Housing Act went into full effect. In both...