The Price of Diversity: Rent Control and Desegregation of Urban Areas.

AuthorWells, Derek

"An unsegregated America might see poverty, and all its effects, spread across the country with no particular bias toward skin color. Instead, the concentration of poverty has been paired with a concentration of melanin. The resulting conflagration has been devastating." (1)


    The shortage of affordable housing in American cities is a longstanding issue and has reached critical mass in many urban areas. (2) The National Low Income Housing Coalition starkly demonstrates this shortage in its annual Out of Reach report: In 2021, the average renter could afford a two-bedroom home in only one state--North Dakota--and the average minimum-wage worker in the United States needed to work nearly ninety-seven hours a week to affordably rent a two-bedroom home. (3) Some explanations for this nationwide crisis include a dearth of new low-income housing and rent increasing at rates substantially greater than income growth. (4) Due to this confluence of factors, affordable housing is less available, and available housing is less affordable. (5)

    The federal government has enacted laws and policies to address the shortage of affordable housing since the aftermath of World War I. (6) One such regionally implemented solution is the introduction of rent controls, which seek to prevent rental prices from becoming unaffordable by limiting rent increases in controlled units. (7) The federal government began providing housing assistance for the poorest of Americans in the midst of the Great Depression. (8) The controversial concept and application of governmental housing assistance has amplified racial disparity and segregation in American cities since its inception. (9)

    Before the landmark Supreme Court decision in Brown v. Board of Education, (10) the federal government facilitated segregation as a matter of federal housing policy, with redlining serving as a well-documented example of the government's discriminatory practices. (11) Even after Brown, federal agencies such as the Public Housing Administration (PHA) and the Federal Housing Administration continued a policy of de facto segregation in public housing. (12) Only after the passage of the Fair Housing Act of 1968 (FHA), which allowed private citizens to bring civil discrimination suits against the PHA, did the agencies stop affirmatively maintaining segregation as a matter of policy. (13) The ongoing segregation of the American urban landscape evidences federal and state government reluctance and refusal to prioritize housing desegregation. (14)

    Both federal and state governments must act to address the intertwined societal issues of continued segregation and the prolific shortage of affordable housing. (15) This Note seeks to address those issues, first by examining the history of judicially and administratively sanctioned segregation in public housing. (16) This Note then looks at desegregation methods, theories, and the state of segregation in America since the FHA. (17) Next, this Note discusses the emergence of rent control as a proposed solution to the affordable housing shortage in urban areas, including the constitutionality of rent control ordinances and the breadth of their implementation. (18) Finally, this Note analyzes how rent control can bolster the effectiveness of desegregation policies, and argues that such a measure should be implemented in the Commonwealth of Massachusetts to combat longstanding segregation and the affordable housing shortage. (19)


    1. Government-Sanctioned Segregation

      The most infamous pronouncement of the "separate but equal" doctrine occurred in Plessy v. Ferguson, (20) the Supreme Court opinion that officially sanctioned the practice of segregation across the United States; the doctrine, however, first appeared almost five decades earlier in the 1849 Massachusetts Supreme Judicial Court opinion Roberts v. Boston. (21) By interpreting the Fourteenth Amendment to allow for separate but equal public accommodations, the Supreme Court extended the framework for institutionalized segregation in society. (22) Indeed, after the Court decided Plessy, governments at all levels utilized the separate but equal doctrine to mandate housing segregation through three main tactics: racially restrictive ordinances and covenants, the practice of "redlining" to prevent government agencies from providing mortgages in nonwhite neighborhoods, and the construction of "equal" public housing in segregated neighborhoods. (23)

      1. Racially Restrictive Covenants

        In 1883, the Supreme Court declined to extend the Fourteenth Amendment's prohibition on racial discrimination to private action. (24) In accordance with this decision, private landowners--starting in Brookline, Massachusetts--prevented integration through racially restrictive covenants, which facilitated segregation through private agreements prohibiting property owners from selling or renting property in white neighborhoods to nonwhite people. (25) The private nature of racially restrictive covenants made them an ideal and popular substitute for racially restrictive local ordinances because courts were unwilling to hold discriminatory private action unconstitutional in the decades following the Civil Rights Cases. (26) Property owners' ability to maintain segregation increased as the Federal Housing Administration encouraged the adoption of racially restrictive covenants before providing government-backed mortgages. (27)

      2. Redlining

        Along with racially restrictive covenants, government agencies like the Federal Housing Administration used a practice called redlining to prevent integration and upward mobility for Black families, which isolated nonwhite people in impoverished urban enclaves. (28) Redlining is the discriminatory practice of rejecting mortgage credit "based on the characteristics of the neighborhood surrounding the would-be borrower's dwelling." (29) The term comes from the Federal Housing Administration's policy of drawing maps with red lines through neighborhoods it found risky or unfit for government-backed mortgages. (30) In addition to categorically rejecting mortgage applications for homes in Black neighborhoods, the Federal Housing Administration also regularly refused to insure the mortgages of Black applicants who wished to purchase homes in white neighborhoods. (31) Preventing those in redlined neighborhoods from obtaining government-backed mortgages left homeowners unable to sell or improve their properties, which greatly decreased property values within redlined areas. (32) The devastating hit to property values accelerated deterioration of neighborhoods and initiated systematic "slum clearing" that led to the destruction of thousands of Black-owned homes, only to be replaced with federally funded public housing. (33)

      3. Segregation of Public Housing

        In part due to strong support in large Northern cities and across the South, Congress created the PHA as part of the New Deal to administer public housing in the United States. (34) The concept of federally funded public housing, however, proved controversial, despite the control offered to local governments by allowing them to plan, oversee, and operate the developments without the corresponding responsibility to provide funding. (35) Congressional oversight by Southern Democrats led to the institutionalization of segregation in public housing, using the separate but equal doctrine for legal and political cover. (36) Indeed, Southern Democrats only allowed the public housing program to continue after World War II by demanding public housing remain segregated. (37)

        The PHA entrenched segregation at the community level by allowing local governments to control both the construction and management of public housing developments that were built predominantly in recently cleared, Black-majority neighborhoods. (38) Local authorities had the latitude to determine the "racial occupancy" of each development, provided that nonwhite people be given public housing in proportion with the eligible population. (39) This implementation of the separate but equal doctrine allowed, and often encouraged, local authorities to build and maintain segregated developments in their communities. (40) The PHA did not object to this practice, believing that the separate but equal doctrine protected it as long as local housing authorities did not use racially restrictive covenants. (41) Though perhaps equal in theory, local authorities placed developments allocated to nonwhite people in deeply impoverished areas and allowed them to fall into disrepair, while simultaneously placing developments allocated to white people in more affluent areas and maintaining the properties more regularly. (42)

    2. Shift to Unconstitutionality of Government-Enforced Segregation

      The presumptive legality of segregationist legislation and policies slowly eroded in the decades following Plessy, (43) Beginning in 1917, courts began to strike down racially restrictive ordinances and covenants, eventually culminating in the landmark decision in Brown that eliminated the legality of segregation. (44) Following that doctrinal shift, Congress passed the FHA, the federal government's most far-reaching and impactful attempt to end housing discrimination. (45)

      1. Judicial Action to Strike Segregation

        In 1917--twenty-one years after Plessy--the Supreme Court decided Buchanan v. Warley, (46) which struck down racially restrictive ordinances as unconstitutional. (47) Despite the progressive result, the Court reaffirmed the legality of Plessy by distinguishing the issue at hand. (48) Rather than challenging the practice of segregation and analyzing the equal protection implications of racially restrictive ordinances, the Court emphasized the ordinance's limitation on the enjoyment, acquisition, and disposal of property as a violation of the Due Process Clause. (49) After Buchanan, those looking to maintain segregated neighborhoods turned to racially restrictive...

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