THE NEW HOUSING SEGREGATION: THE JIM CROW EFFECTS OF CRIME-FREE HOUSING ORDINANCES.

• Author: Archer, Deborah N.

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues to play a profound role in creating and legitimizing patterns of racial segregation all across America. Crime-free housing ordinances are one of the most salient examples of the role law plays in producing and sustaining racial segregation today. They are, in this respect, a critical mechanism for effectuating the new housing segregation.

Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways. This is the first article to explain precisely how they do so. The Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. While scholars have examined the important role local laws played in effectuating racial inequality, they have not paid attention to crime-free housing ordinances. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a "segregative effects" claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact. While this intervention would not end the pervasive nature of housing segregation across the United States, it could eliminate at least one of the causes of this persistent problem: a body of law whose formal race neutrality has obscured its racially segregative effects.

INTRODUCTION I. EXCLUSIONARY LOCALISM AND RACIAL SEGREGATION II. THE RISING TIDE OF CRIME-FREE ORDINANCES A. History of Crime-Free Ordinances B. Standard Provisions 1. Rental Housing Licensing Programs 2. Background Checks and Crime-Free Databases 3. Crime-Free Lease Addendum C. Specific Crime-Free Housing Ordinances Examined 1. Faribault, Minnesota 2. Orlando, Florida III. OVERVIEW OF NORMATIVE CONCERNS A. Adoption in Response to Increasing Racial Diversity in the Community B. The Promotion of Destructive Messages Concerning People with Criminal Legal System Contacts C. Importing Harmful Policing Practices into the Private Housing Market IV. THE RACIALLY EXCLUSIONARY REALITY OF CRIME-FREE ORDINANCES A. Racially Discriminatory Impact in the Adopting Municipality B. The Perpetuation of Systemic Segregation in Surrounding Communities V. THE POTENTIAL OF THE FAIR HOUSING ACT OF 1968 AND THE SEGREGATIVE EFFECTS CAUSE OF ACTION A. The FHA's Segregative Effects Provision B. Applying the FHA to Crime-Free Ordinances CONCLUSION INTRODUCTION

Crime-free housing ordinances and programs are part of the expanding web of zero-tolerance policies adopted by private landlords and public housing authorities. These policies ban renting to individuals with a criminal history or allowing those individuals to live with their families. (1) In many cases, they bar and expel people from rental housing without consideration for the amount of time that has passed since the conviction, the nature of the underlying conduct, the actions of a formerly incarcerated person postconviction, or the preexisting racial and class disparities in the criminal legal system. Take the story of Melvin Lofton. At the age of twenty, Mr. Lofton was convicted for burglary and theft. Today, at the age of fifty-one, Mr. Lofton has been out of prison for over twenty years. Yet his conviction makes it extremely difficult to find housing on his own. (2) Or, consider the story of a New York mother threatened with eviction after her fifteen-year-old son was "banned" because of an arrest for marijuana possession. (3) These stories are not unique. Across the country, people involved in the criminal legal system and their families are being squeezed out of various housing markets. At best, many of these people find themselves with one option: to live in poor communities of color already struggling with a shortage of affordable housing and the impact of high concentrations of residents with criminal records.

The adoption of crime-free housing ordinances and programs ("crime-free ordinances") is becoming a national trend. According to one estimate, approximately 2,000 municipalities across forty-eight states have adopted crime-free housing ordinances. (4) These local ordinances have the purported goal of stemming crime in rental housing by forcing landlords, either through mandatory action or seemingly voluntary guidance, to exclude or evict tenants who have had some degree of contact with the criminal legal system. As I will explain, while there is no evidence that these ordinances reduce crime, there is reason to believe that they play a role in restricting access to affordable housing and promoting racial segregation.

The impact of crime-free ordinances on racial segregation should be a matter of great public concern. At a time when America's population has become more racially diverse, (5) extreme residential segregation on the basis of race nonetheless persists. (6) The United States has a long and complicated history of racial segregation in housing, enforced through public policies, (7) individual acts of discrimination, (8) and mob violence. (9) The cumulative effects of this segregation on people of color are profound. Research has consistently concluded that Black and Latinx people living in racially segregated communities, with the concentrated poverty that often accompanies such segregation, have profoundly limited life opportunities. (10) Residential segregation affects an individual's access to quality education, (11) employment opportunities, (12) government services, (13) and social capital. (14) Residents of racially segregated communities also experience increased contact with the criminal legal system--one of the critical drivers of unequal opportunity in America. (15) Poor, isolated, over-policed, and under-resourced communities of color are a legacy of housing discrimination. (16)

Yet, despite the persistent impacts of residential racial segregation, housing discrimination is often perceived as a relic of history, solved long ago with the passage of the Fair Housing Act of 1968 (17) and decades of its enforcement by the government and private citizens. According to this narrative, lingering segregation is largely driven by regrettable but understandable private choices beyond the reach of the law--rational decisions motivated by the desire to live in safe communities with high-quality schools, good amenities, and high property values. (18) The narrative concludes that the fact that safer and more resourced communities happen to be predominantly White is mostly a result of historic racial discrimination, not current laws, policies, or practices. (19)

As with many narratives about the end of government-sponsored racial discrimination, the truth is significantly more complex. Racial segregation continues to be a problem not simply of history, but of current design. Although the nature of racism in housing continues to change, government policies continue to sustain racial segregation, often working to resegregate communities that had managed to achieve some level of integration.

Local laws are often more central than federal or state laws to creating and perpetuating racially segregated neighborhoods. Exclusionary local laws and policies are among the primary mechanisms used by predominantly White communities to ward off racial integration. (20) Seemingly race-neutral local laws have had a profound role in driving systemic racial exclusion and residential segregation. (21) Exclusionary zoning laws are the paradigmatic example, effectively erecting fences that exclude poor people of color from that community. (22) But exclusionary localism did not begin or end with exclusionary zoning laws. (23)

Crime-free ordinances are an emerging and increasingly effective tool of exclusionary localism. Proponents of crime-free housing ordinances, which have their roots in the law enforcement community and are based on principles of policing, assert that the ordinances will deter criminal activity in a community by punishing private landlords and tenants for the suspected criminal activity of residents. (24) The ordinances and programs take various forms, but all encourage or require landlords in the municipality to take steps aimed at keeping people with criminal legal system contacts out of rental housing and, ultimately, out of the municipality altogether. (25)

Troublingly, crime-free ordinances extend the reach and impact of these types of exclusionary policies, moving them from optional to mandatory for private landlords and stretching the definition of "criminal activity" beyond any reasonable definition of crime. These ordinances affect people who cannot reasonably be said to pose a threat to the health or safety of other residents. Crime-free ordinances not only block tenants like Mr. Lofton because of unreasonably long periods of time during which convictions are considered. By casting such a wide net, they also may exclude individuals with convictions for shoplifting, jaywalking, or driving on a suspended license. Even more disturbing, crime-free ordinances criminalize and exclude people without any...