The Pieces of Housing Integration.

AuthorBarnes, Kristen
PositionFair Housing Past, Present, and Future: Perspectives on Moving Toward Integration

CONTENTS INTRODUCTION: THE PIECES OF HOUSING INTEGRATION I. STRUCTURE AND APPROACH II. STRUCTURAL DISCRIMINATION AND STRUCTURAL SEGREGATION III. TROUBLING ISSUES WITH RESPECT TO LOCAL GOVERNMENT, DEVELOPERS, AND COURTS A. Texas Department of Housing and Community Affairs v. Inclusive Communities (2015) 1. Referencing ADE A and Title VII as Precedents to Determine the Viability of the Disparate Impact Claim and Its Parameters a. Relevance of the ADEA and Title VII to Both the Court's Inclusive Communities Decision and Disparate-Impact Analysis b. The Inappropriateness of Employment-Discrimination Law as a Model for Fair Housing Claims 2. The Burden Shifting Framework a. Establishing a causal connection b. Prongs Two and Three of the Burden-Shifting Framework B. Developers C. Mobility Grants and Their Relationship to Inclusive Communities IV. BANKS: PROMISES AND PROBLEMS 739 A. The Racial Surtax: Department of Justice Settlement with Wells Fargo Bank, NA B. Bank of America Corp., et al. v. City of Miami (2011) V. COMMUNITY BANKS VI. THE WILL OF THE PUBLIC CONCLUSION INTRODUCTION: THE PIECES OF HOUSING INTEGRATION

Moving Toward Integration (1) is an exceedingly thorough work that is indispensable to searching conversations about how to achieve racial integration in housing in the twenty-first century. The book makes a substantial contribution to the literature concerning housing policies, racial relations, the history of black and white segregation in the United States, and the potential for racial integration in residential housing. It adopts an impressive interdisciplinary approach to the subject matter and has several main purposes and goals. First, it affirms the value of racial integration and how impactful it is on individual lives. Second, it seeks to identify and understand patterns of migration of racial populations within the United States. The primary emphasis is on African Americans and whites. Third, it draws upon historical and current data from a variety of resources and time periods to examine contributing factors to segregation, resegregation, and integration. Fourth, the work offers a productive analysis of policies, programs, and laws adopted in the past concerning housing, lending, segregation, and integration, with a view towards extracting lessons. Fifth, the book offers well-considered solutions and strategies.

The solutions such as mobility grants and community banks are intriguing, thoughtful, and worth exploring. I examine those strategies herein. I argue that it is necessary to be mindful that, with new initiatives, the old issues of implementation, lack of political will, and graft may arise. There are numerous places where I agree with the book's analysis and recommendations; there are also important places where we differ. My comments fall under several headings: definition of structural discrimination and structural segregation; troubling issues with respect to courts, developers, and banks; reflections on disparate impact theory; and the public's will to integrate.


    The book's authors, Richard Sander, Yana Kucheva, and Jonathan Zasloff, adopt a constructive strategy in tackling integration as a puzzle. That approach is efficacious because it allows for a more comprehensive explanation of the dynamics leading to the status quo, which is the unintegrated state of many communities across the United States. The authors recognize that identifying the root causes of segregation and resegregation, as well as effective incentives for integration, are germane components of the analysis. Another aspect of their strategy is referencing key court decisions, such as Buchanan v. Warley, (2) Shelley v. Kramer, (3) the Mount Laurel cases, (4) Jones v. Mayer. (5) and essential legislation such as the Fair Housing Act, (6) as watershed organizing moments. The book examines how each has impacted the terrain.


    My definitions of structural discrimination and structural segregation differ from that of Moving Toward Integration's authors. Relying upon their definition, the authors conclude that "structural segregation (like housing discrimination) is relatively low." (7) Their definition of "structural segregation" concerns "that portion of racial segregation that results from racial differences in income, wealth, family size, and other sociodemographic characteristics." (8) Although my definition is sufficiently capacious to encapsulate the foregoing elements, my emphasis is on structures and institutions and their respective policies and practices. I am not asserting that there is no value in measuring the racial segregation associated with the characteristics the authors highlight. Rather, I argue that government at all levels--federal, state, and local--and lending institutions were prominent actors in the history of racially segregating communities. Appreciating the complex operations and effects of those structures is indispensable to rendering an accurate account of contemporary racial housing patterns and devising solutions for change. Systemic discrimination, persistently, has functioned to maintain racially segregated cities and neighborhoods. (9) Moreover, systemic discrimination has produced and sustained substantial racial inequality in many areas including income, wealth, employment, and education. These socio-demographic variables profoundly influence housing selection decisions.

    As a strategy to highlight the role of structures in accordance with how I conceptualize them, I analyze Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (10) Bank of America Corp. v. City of Miami, (11) and the Department of Justice's 2012 settlement with Wells Fargo. (12) These examples illustrate how government, powerful players, such as developers and banks, work to perpetuate socio-economic racial exclusion that continues to harm African-American communities.


    The following discussion is a prelude to my analysis of Moving Toward Integration's proposal that mobility grants should be utilized as one strategy to foster integration. (13) While I see tremendous positives in proposing such grants as one solution, I am also cautious because of how incentives have been subverted in the past. (14)

    1. Texas Department of Housing and Community Affairs v. Inclusive Communities (2015)

      Inclusive Communities exemplifies how a potentially robust tool such as disparate-impact liability can be stripped of its power and effectively neutralized so that the Fair Housing Act is prevented from performing the integrative work it was intended to do. Inclusive Communities demonstrates that government, encompassing its various instrumentalities (legislative, administrative, municipal, state, and federal), and courts, can frustrate integration goals. The FHA was the primary vehicle through which the Inclusive Communities plaintiffs formulated their complaint. Moving Toward Integration also gives attention to Inclusive Communities and expresses optimism regarding the court's ruling on disparate-impact theory. (15) The book's authors appropriately focus on the Fair Housing Act as being fundamental to the work of integration.

      Inclusive Communities Project, Inc. ("ICP" or "Inclusive Communities") initiated its case against Texas Department of Housing and Community Affairs ("TDHCA" or "Texas Department of Housing") when it brought suit alleging that TDHCA violated the FHA by distributing low-income-housing tax credits in a manner that perpetuated housing segregation patterns. (16) As a non-profit organization working primarily with African Americans to assist them with identifying affordable rental housing that would accept Section 8 vouchers, (17) Inclusive Communities was frustrated by the paucity of housing choices available to its clients. According to ICP, too often the limited options were situated in over-concentrated urban areas in Dallas, Texas. (18) These neighborhoods typically lacked decent school choices and did not have adequate municipal services, such as road maintenance, waste management, fire and police protection, parks, and other safe public spaces.

      Administration of the Low-Income Housing Tax Credit ("LIHTC") was the central focus of the case. (19) Moving Toward Integration examines LIHTC in detail, drawing important lessons regarding how to structure incentives for encouraging racially-integrated affordable housing options. (20) The LIHTC program is federally authorized. It operates to monetarily incentivize developers to build affordable housing. Initiated by the federal government in 1986, it is the "largest single source of funding for the development of low-income rental housing." (21) The Internal Revenue Service awards tax credits to states; LIHTC then permits states or other designated government entities to distribute tax credits to developers. States are required to first develop a plan, listing criteria that they must reference to make decisions about how to allocate tax credits to developers. (22) The allocation of credits impacts where low-income housing is sited. Private developers, in turn, can sell the credits to financial institutions and other investors in order to raise capital to cover the costs of constructing low-income housing, as prescribed by federal statute. (23) The statute defines a "qualified low-income housing project" as "any project for residential rental property" that satisfies the statutory criteria pertaining to the number of units that are "rent-restricted" and occupied by a certain percentage of individuals whose incomes fall within the acceptable parameters of the "area median gross income." (24) The program has come under fire in recent years because, while it has resulted in substantial profits for developers and banks, it has not sufficiently produced low-income housing in...

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