Reflections on "Moving Toward Integration" and Modern Exclusionary-Zoning Cases Under the Fair Housing Act.

• Author: Schwemm, Robert G.
• Position: Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration

CONTENTS INTRODUCTION I. REFLECTIONS ON MOVING TOWARD INTEGRATION II. REFLECTIONS ON MODERN EXCLUSIONARY-ZONING CASES A. Background: The Book's Strategy #12 and an Overview of Relevant FHA Law B. Post-Inclusive Communities Commentary and Cases C. The Trump Administration's Attack on Fair Housing and Exclusionary-Zoning Cases 1. Overview 2. HUD's Proposed Changes to its Discriminatory-Effect Regulation 3. The Proposed Rule's Potential Effect on Exclusionary-Zoning Litigation CONCLUSION INTRODUCTION

This Article has two parts: Part I presents my views on Moving Toward Integration, (1) and Part II examines one of the book's policy recommendations for furthering residential integration--exclusionary-zoning litigation--along with some of the roadblocks to this and other pro-integration efforts erected by the Trump Administration.

1. REFLECTIONS ON MOVING TOWARD INTEGRATION

   Moving Toward Integration is an impressive and challenging book about America's most important problem: the enduring racial divisions generated by over a century of segregated housing. There is much to praise about the book and also some questions to raise.

   First, the praise. The book provides a great deal of sophisticated analysis about difficult legal and social science concepts, presented in clear prose and with helpful graphics. The authors have done a herculean job in gathering and presenting the relevant data, cases, and studies. Their greatest achievement, however, is in offering new ways of understanding this material through original research and fresh analytic methods. Virtually every one of the book's 500-plus pages contains a novel idea or insight, making it the most thought-provoking work in this field since the classic Massey & Denton study of 1993. (2)

   The book recognizes some fundamental problems about race-based housing segregation. (3) These include that, despite the passage of the 1968 Fair Housing Act ("FHA"), (4) such segregation remains severe in many parts of the country (5) and that blacks who live in racially segregated neighborhoods suffer a variety of life-limiting, even life-threatening, conditions likely to harm them far into the future. (6) The book also shows that the generally slow national trend of de-segregation over the FHA's lifetime masks varying progress at different times (e.g., rapid progress in the 1970s; much less since 1980) and in different parts of the country (e.g., substantial progress in the West and Southwest; much less in the North and Midwest). (7) The authors also make the point that, once a metropolitan area does move from heavily segregated to less so, it never reverts back. (8)

   The book's main conclusions are that housing discrimination is no longer a major impediment to integration (9) and that, despite a slow and erratic record, the U.S. is winning the battle against housing segregation. (10) The book's positive message and optimistic tone contrast with the pessimism that, as the authors note, pervades much of the other work in this field. (11)

   The book takes a chronological approach, with four parts covering, respectively, the post-Civil War period through the FHA's passage in 1968; the first decade of the FHA's enforcement; the remainder of the twentieth century; and the current century. A final part, "Solutions," identifies twelve policy prescriptions to further reduce residential segregation, (12) which, all being financially and politically realistic, (13) reinforce the authors' sense that the progress that has been made in achieving integration can be substantially enhanced in the coming years. One of these proposals, banning source-of-income discrimination, I address at length elsewhere in this volume. (14) The last one, FHA-based challenges to exclusionary zoning, I discuss in Part II of this Article.

   The book's weakest points are in some of its interpretations of the history of fair-housing litigation. For example, the gushing treatment of the Justice Department's early FHA enforcement efforts is unfathomable and inconsistent with my experience during that time. (15) I also find unpersuasive the book's effort to elevate the importance of Shelley v. Kraemer, (16) the Supreme Court's 1948 decision outlawing court-enforcement of racially restrictive covenants. (17)

   These bumps in the book's historical story, however, are not central to its main themes. As to these themes, the points I would raise, which challenge somewhat the authors' optimism, include:

   * Given the book's recognition that most of the nation's black population still lives in "very-high-segregation areas" (18) and that it will "take generations for segregation levels in these urban areas to fall to [moderate levels]," (19) I am skeptical about the authors' conclusion that these high-segregation areas are assured of "increased [and self-reinforcing] integration" based on "propitious demographic trends" and other "remarkably favorable conditions." (20)

   * Given the authors' view that much of today's segregation is attributable to a concept they call "market failure," (21) I would have welcomed a stronger explanation of this concept and of why they conclude it deserves such causal significance. (22)

   * Given that the book was mostly written during the heady days of the Obama Administration, is a re-evaluation now required after three years of Trump's presidency?

   As to the last point, a key theme of the rest of this Article is how reactionary the Trump Administration has been toward fair-housing and de-segregation efforts. Its Departments of Housing and Urban Development ("HUD") and Justice--the agencies primarily responsible for enforcing the FHA (23)--have actively worked to turn back many of the Obama years' most progressive housing efforts; (24) Trump has appointed many federal judges hostile to civil rights; (25) and he has encouraged racial divisions that have coincided with an increase in race-based hate crimes. (26)

   The book discounts these negative developments, arguing that "the 2016 election ... has left long-term [pro-integration] trends undisturbed." (27) The authors reason that enforcement of the FHA and other anti-discrimination laws is no longer the key to progress in this field, (28) which instead they view as virtually guaranteed by positive demographic forces and an ever-growing acceptance of integration by the American people. (29) We shall see.

2. REFLECTIONS ON MODERN EXCLUSIONARY-ZONING CASES

   1. Background: The Book's Strategy #12 and an Overview of Relevant FHA Law

      The book's last of twelve proposed integration strategies deals with "[disparate impact litigation on zoning." (30) Here, the authors identify the basic Supreme Court and appellate precedents that have addressed zoning and other local land-use practices used to limit affordable housing projects in white areas; (31) describe in detail a 2000 Texas district court case; (32) suggest that the Justice Department "could become more involved in bringing [such] suits," at least if "political conditions change" (i.e., after the Trump Administration); (33) and conclude that, although such litigation is often contentious and protracted and its potential efficacy should not be over-estimated, "the stick of disparate impact litigation" can be helpful in challenging particular "exclusionary barriers within a metropolitan area." (34)

      The book is correct that exclusionary-zoning cases have been an important part of FHA litigation ever since the statute's earliest years. Three theories of liability ultimately emerged in FHA-based cases accusing municipalities of racial discrimination in blocking affordable housing projects. (35) Obviously, a FHA claim could be based on intentional discrimination, with the required proof of the defendant's illicit motivation being essentially the same as would violate the Fourteenth Amendment's Equal Protection Clause under the Supreme Court's 1977 decision in Village of Arlington Heights v. Metropolitan Housing Development Corporation. (36) In addition, two separate types of discriminatory-effect claims--disparate-impact and segregative effect--soon came to be recognized, primarily as a result of decisions by the Seventh and Eighth Circuits in the 1970s (37) and the Second Circuit's 1988 decision in Huntington Branch, NAACP v. Town of Huntington. (38) Neither of these discriminatory-effect claims requires a showing of illegal intent, and both were endorsed in a 2013 regulation promulgated by HUD ("Current Rule"). (39) Under the Current Rule, which was designed in part to provide national uniformity in evaluating FHA-effect claims, (40) both theories are subject to the same three-step burden-shifting proof scheme, with the plaintiff having the initial burden of proving that the defendant's challenged practice causes a discriminatory effect. (41)

      In 2015, the Supreme Court endorsed FHA disparate-impact claims in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (42) concluding that the disparate-impact theory is a way of bolstering the FHA's "continuing role in moving the Nation toward a more integrated society." (43) Although Inclusive Communities was not a traditional exclusionary-zoning case, (44) the Court recognized that FHA-outlawed practices "include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification." (45) According to Inclusive Communities, "[s]uits targeting such practices reside at the heartland of disparate-impact liability," a proposition for which the Court cited Huntington and two other cases. (46) Again citing Huntington, the Court noted that the disparate-impact theory has allowed plaintiffs to vindicate the FHA's objectives "by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units." (47)

      The Court in Inclusive Communities did not base its ruling on HUD's 2013...