Frank S. Alexander, the Housing of America's Families: Control, Exclusion, and Privilege

• Publication year: 2005

THE HOUSING OF AMERICA'S FAMILIES: CONTROL, EXCLUSION, AND PRIVILEGE

Frank S. Alexander^*

I. INTRODUCTION

In recent years, and especially in the latest round of state, local, and national political campaigns, three topics seem to be at the top of our cultural agenda: families, housing, and religion. Families are a consistent topic of conversation: the advancement of "family values," the preservation of the autonomy and sanctity of the family, and the relationships which count as creating a family. There is also a great emphasis on housing, and pride in the fact that the rate of homeownership in America is now at a record high, with roughly sixty-eight percent of Americans owning the home in which they live.¹

President George W. Bush, in his most recent inaugural address, proclaimed a vision of a new "ownership" society, premised on his belief in the liberty of each family to own their own homes.²Religion, of course, is everywhere, present in virtually every conversation on each and every topic. Though many bemoan the absence of religion in the public square, religion is far from absent; indeed it has become a defining element of the public square.

This emphasis on families and on housing is intriguing, for there are many common threads in the provision of housing and in the promotion of family life. Over fifty years ago, Congress declared the "goal of a decent home and a suitable living environment for every American family."³We have indeed made great progress during this period of time in eliminating substandard housing and in making it possible for more and more families, across the entire spectrum of incomes, to own their own homes. Pride in such progress, however, must be tempered with the truth that, in the midst of this prosperity, over two million individuals live without any shelter whatsoever.⁴These are our citizens whose "home" is their car, the overpass under which they huddle at night, or, if they are so fortunate, the night shelter which gives them a mattress at 6:00 p.m. on the condition that they leave at 6:00 a.m. Though homeownership rates may now be at sixty-eight percent, we also are witnessing the highest recorded rates of residential foreclosures,⁵and the average family has less equity in their home than ever before.⁶

What is both intriguing and puzzling about the dual emphasis on families and housing is not the importance of each but rather the manner in which they have been tied together. Housing laws should focus on the production, maintenance, and ownership of residential units. Concerns with our families, our lives together, our relationships and commitments one to another, seem oddly out of place as we survey housing laws over the past 150 years. The result of such an examination is quite surprising.

Our housing laws have been used, directly and indirectly, consciously and unconsciously, as vehicles for the definition and control of families, of what relationships count in determining what constitutes a family. If you have three sons, and they all happen to share one large bedroom, you may well be in violation of a local building code. If you have a basement or garage apartment that is occupied by grandparents as they become advanced in their years, there is a good chance that you are in violation of the law. If you elect to share a house with four college roommates or one or two professional friends, you may find yourself facing the wrath of your neighbors and fighting eviction.

Housing laws have been used, and are being used, in ways that simply do not make sense. Instead of focusing on the creation of decent housing, some of the laws have been used to discriminate and to deny. Instead of creating places of hospitality, they breed hostility. Instead of providing support, they serve to segregate. It is much easier to build houses; it is much tougher to build families. Over the past 150 years, we have too often let the building and control of houses become a vehicle for building and controlling families. Housing laws simply cannot and should not be a tool by which our society determines the essential nature of a family.

The Fields of Inquiry

There are a myriad of ways in which housing laws and policies, understood broadly, have a profound impact on the definition of American families. This overall project focuses on six primary fields of inquiry:

(1) Homelessness (4) Restrictive Covenants

(2) Public Housing (5) Housing & Building Codes

(3) Federal Subsidies (6) Zoning & Fair Housing

The focus of this essay is on the latter three topics: restrictive covenants, housing and building codes, and zoning laws. There are certain topics which, though quite relevant to this thesis, are not included. The most obvious example of such an omission is the history of discrimination in our housing laws on the basis of race, religion, and national origin. This is excluded not because it does not support the thesis, but because it is simply too large of a topic-deserving of its own separate treatment-and it is addressed in part by separate constitutional and statutory provisions.⁷The primary focus of this essay is instead on the family-its definition and discrimination, its control and exclusion-in the context of housing laws.

Our social and cultural norms are oftentimes most poignantly demonstrated by how we treat those who have the least.⁸Federal law defines a homeless person as "an individual who lacks a fixed, regular and adequate nighttime residence" or a person who resides in a shelter, welfare hotel, transitional program, or place not ordinarily used as regular sleeping accommodations.⁹

Although there may be strong disagreement on the number of individuals and families who are homeless in America on a given night this year,¹⁰there is widespread agreement that the numbers have increased dramatically in the past two decades. Of the two to three million individuals who will be without housing at some point during this year, approximately forty percent of them are families with children,¹¹and more than fifty percent of homeless children are under the age of six.¹²As striking as this data is, what is key for this thesis is the mismatch between the housing resources our society makes available to serve those who have the least and the families in need of help.

In 2004, thirty-two percent of homeless families in the United States were denied shelter requests, and eighty-one percent of cities reported that their shelters turned away homeless families due to a lack of resources.¹³Why is this? The answer, at one very simple level, is that it is easier and cheaper to provide large numbers of shelter beds for adult males than for a mother and father with a fourteen-year-old son and a six-year-old daughter. In over half of the cities in the United States, families are required to break apart and go to separate facilities in order to have shelter.¹⁴Boys over the age of ten are not commonly allowed in shelters where women are present, and fathers may be sent to shelters for single males.¹⁵

There is very little "housing law" that directly pertains to those who are homeless among us. There are government assistance programs,¹⁶and there are local ordinances designed to keep the homeless out of sight.¹⁷What our housing policies reveal as they impact homeless families is that families at this level of income are a very low priority. We house individuals and make little effort to preserve, support, and nurture families on the streets. In every city there is often a striking and moving exception to this-such as The Genesis

Shelter in Atlanta¹⁸-but the point is that these are exceptions and not the primary focus of housing those who are homeless.

II. RESTRICTIVE COVENANTS

There is, at least in the human community, a prevailing and recurring tendency to hold simultaneously two conflicting attitudes-a strong desire to control the lives of our neighbors and an insistence on being free from control by our neighborhoods. In American law, restrictive covenants are by nature private agreements which courts interpret and enforce. They are agreements in which one property owner seeks to restrict and control the use of property by another owner. At the heart of these restrictions lies the desire to define and regulate who lives in the neighboring property, how they live together, and whether they are likely to occupy the same social and economic status as oneself. The law of restrictive covenants mirrors these social and cultural priorities and biases.

In the history of western law, restrictive covenants are a relatively recent invention, emerging in the latter half of the nineteenth century. The early covenants laid the foundation for the practices of the following century in stating expressly what activities and uses were permitted on property, and frequently listing those activities that were expressly prohibited. From the middle to the late nineteenth century, these covenants focused on excluding commercial and public activities, prohibiting specific forms of activities considered to be "nuisances," and striving to protect the "first class residence."¹⁹They were used primarily to ensure that property would be used

"for residential purposes," as "a dwelling" with a superficial emphasis on the nature of the structures that could be erected. The express emphasis on structure, however, was judicially interpreted to reveal the underlying intent to exclude entire economic strata of society. Restrictive covenants were initially used as a bulwark against the feared degradation of tenement houses, and by the beginning of the twentieth century they reflected the desire to control flats, duplexes, and apartments on neighboring property.²⁰

Because restrictive covenants are private agreements subject to judicial interpretation-often decades after they were originally written-courts invoked a series of canons of interpretation to reach conclusions as to how to enforce a specific restrictive covenant. Whether a covenant limiting the use...