Friday, February 18, 2011
Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010). Here's the abstract:
This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.
February 18, 2011 in Affordable Housing, Development, Housing, HUD, Inclusionary Zoning, Land Trust, Landlord-Tenant, NIMBY, Planning, Race, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)
Friday, January 28, 2011
My colleague, Audrey McFarlane (Baltimore), has posted Operatively White?: Exploring the Significance of Race and Class Through the Paradox of Black Middle-Classness, 72 J. Law & Contemp. Probs. 163 (2009). Here's the abstract:
The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The term "gentrification" suggests wealthier Whites displacing poor Blacks. Little attention has been paid to the significance of the increasing numbers of Blacks stepping into middle-class roles formerly held almost exclusively by Whites. Taking both race and class into account seems to demand exploration of the significance of Blackness and affluence within an existing societal structure that has evolved from white supremacy to a seemingly less-virulent, or more-benign, white norm - one in which normalcy, wealth, advantage, and presumptions of innocence are still implicitly predicated on Whiteness and in which an economic structure of white privilege and black disadvantage is inscribed into the geography of the physical landscape.
The reality that middle class homeowners, whether Black or White, seek to avoid the disadvantages of poverty presents a divide in black racial solidarity based on class. However, because of structural disadvantage in racially segregated neighborhoods, the black middle class are not as successful at getting away nor in protecting their turf as white middle class are. In effect this is a racial disadvantage but certainly a paradoxical one. It involves a disadvantage in escaping the poor and disadvantage in exercising privilege at the expense of the poor. Using the example of the black middle class, it is possible to see that the vestigial oppression of slavery and the domination of white supremacy have morphed but have not been eliminated. Instead, those institutions have been disaggregated into discrete, wealth-based components of Blackness and Whiteness. Thus, Blacks with money are privileged in certain limited circumstances to be operatively white. Through their wallets and educational or professional attainments they gain access to some of the privileges, goods, and services formerly reserved exclusively for Whites. Thus, this article considers challenges and opportunities of Blackness and middle-classness in its twenty-first century context of being "operatively white." Specifically, how should neighborhood land use conflicts be regarded if poor Blacks are disproportionately, negatively affected in relation to affluent Blacks? That racialized impact should not be dismissed as being purely about class just because the affluent are also black. Problems of class in the United States are racialized; they are never separate from the racial structures of subordination that still operate here. Accordingly, problems currently cognizable as being merely about class are necessarily still cognizable as problems of race.
In order to enrich our ability to give race and class the sophisticated and probing account that their complex interaction calls for, this paper takes the concept of racialized class to its logical end and explores the ways in which racial identity and racial social position are affected by class. Because race and class are structurally inscribed into the landscape, racial justice is considered to require economic liberation. Economic liberation comes, however, at the expense of the black poor. Therefore, there cannot be racial justice without economic justice.
Saturday, January 15, 2011
There was a fascinating piece on the radio in the UK this morning on the disputes between gypsy-travellers and settled communities (for a video see here) with direct action taken on both sides. This head-on collision over land use has arisen in the English village of Meriden where a group of gypsies attempted to construct a caravan site for 14 trailers on a field they own over a holiday weekend (giving them an additional day before local planning officers were open again). While these stealth tactics have previously been successful, this time gypsy-traveller ‘land activists’ were opposed by a human barricade of local residents who were determined not to let them build. Eight months later the gypsy-travellers continue to live on the site in their caravans (with sanitary facilities that were permitted to be constructed over the Summer) with both sides awaiting the outcome of an application for planning permission to construct hard standings and further infrastructure on the site.
These are longstanding disputes (gypsies were regulated as early as the Egyptians Act of 1530), with the nomadism and communal living at the heart of many gypsy and travelers’ lifestyles challenging a planning system based on sedentarism and individualism. Rights to camp or pitch caravans on open spaces have long been restricted with public provision made for gypsy-travellers on authorised sites, although there has been a widely acknowledged lack of provision. This situation has been condemned as ‘deplorable’ by the European Court of Human Rights with approximately one in four Gypsies and Travellers living in caravans without a legal place on which to park their home.
Disputes such as that at Meriden raise claims of unfairness, with arguments raging about whether ‘travelling’ or ‘settled’ communities are better treated by the planning system and why, if gypsies are traveling people, they need settled provision at all. The new Conservative-Liberal Democrat, responding to the concerns of their political supporters in the ‘Tory shires’, are about to introduce new rules on planning applications by gypsy-travellers to restrict their ability to apply for retrospective planning permission and to tackle the thorny issue of public provision of authorised sites. In the meantime, at today’s conference, no gypsy-travellers have apparently been invited to attend.
Saturday, January 8, 2011
Carolina Academic Press has just released the 4th edition of Housing and Community Development: Cases and Materials (Amazon has a substantial preview). Barbara Bezdek (Maryland) has joined the already prominent list of eight community development and law professor editors. The first revision in more than eleven years clearly bears the imprint of Barbara’s hard work. New excerpted material puts the very timely topic of revitalization front and center and includes post-Kelo redevelopment, vacant building receivership (full disclosure, this one’s mine), tenants of foreclosure properties, Peñalver and Katyal on Property Outlaws.
January 8, 2011 in Affordable Housing, Books, Community Economic Development, Development, Economic Development, Eminent Domain, Federal Government, Financial Crisis, Housing, Planning, Property, Property Rights, Race, Redevelopment, Sustainability, Takings | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 14, 2010
In the mail this morning, I received a copy of Integrating Spaces: Property Law & Race (Aspen, 2011), by Alfred Brophy (North Carolina), Alberto Lopez (Northern Kentucky), and Kali Murray (Marquette). Here is the description:
Integrating Spaces: Property Law and Race enables you to seamlessly integrate historical and contemporary issues of race and ethnicity into your Property syllabus alongside your casebook. With historical perspective and doctrinal analysis, it maps the directions in which property law has turned in response to issues of race and ethnicity, and demonstrates how racial and ethnic categories continue to affect contemporary property law.
Integrating Spaces: Property Law and Race provides a dynamic social, historical, and doctrinal context for teaching property law:
- nearly 30 new and provocative cases—including the Supreme Court decision in Oyama v. California (alien land laws) and state court and federal court decisions in Trueheart v. Parker and Morison v. Rawlinson (race nuisance cases involving a jazz club and an African American church)
- extensive treatment of Federal civil rights statutes and their implications for environmental justice and the housing and financial crisis
- a close look at the efficacy of traditional property concepts as solutions to minority or cultural requirements—such as easements by prescription for Native American religious uses (United States v. Platt), Native Hawaiian access to sacred sites and beaches ( PASH), and the impact of partition land sales on African-American farmers and indigenous communities
- consideration of an international perspective, including cases on land redistribution in South Africa, cultural property in Australia, and restitution in post-conflict Bosnia and Herzegovina and Guatemala
- legal context and appropriate pedagogy from statutes, excerpted law review articles, and questions for discussion in the notes
- Teacher's Manual that provides additional questions and suggestions for linking the cases to coverage in traditional casebooks
Timely and relevant, Integrating Spaces: Property Law and Race brings a whole new dimension to your Property course. If you’re looking to refresh your teaching experience, challenge your students, or fuel class discussion, order a complimentary copy of Integrating Spaces: Property Law and Race.
A terrific resource!
Tuesday, December 7, 2010
Thomas W. Mitchell (Wisconsin, Law), Stephen Malpezzi (Wisconsin, Real Estate & Urban Economics), and Richard Green (USC, Lusk Center for Real Estate) have posted Forced Sale Risk: Class, Race, and The 'Double Discount', Florida State University Law Review, Vol. 37 (2010). The abstract:
What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale conditions. This analysis makes it clear that forced sales of real or personal property are conducted under conditions that are rarely likely to yield market value prices. In addition, the Article addresses the fact that judges and legal scholars have utilized a flawed economic analysis of forced sales in cases that often involve property that is owned by low- to middle-class property owners in part because those who are wealthier own their property under more stable ownership structures or utilize private ordering to avoid the chance that a court might order a forced sale under the default rules of certain common ownership structures. The Article also raises the possibility for the first time that the race or ethnicity of a property owner may affect the sales price for property sold at a forced sale, resulting in a "double discount," i.e. a discount from market value for the forced sale and a further discount attributable to the race of the property owner. If minorities are more susceptible to forced sales of their property than white property owners or if there does exist a phenomenon in which minorities suffer a double discount upon the sale of their property at a forced sale, then forced sales of minority-owned property could be contributing to persistent and yawning racial wealth gaps.
Thursday, November 11, 2010
From The New York Times:
An alternative theater company has created a work based on the controversial Atlantic Yards development in Brooklyn.
“So there’s ULURP,” begins the second song in a new musical about Brooklyn. “ULURP is the Uniform Land Use Review Procedure/Which required community involvement and public review/Of all kinds of New York City land-use projects.”
If this seems like something you might read in the notes of a community board meeting, that’s because it is. The song goes on to define the Empire State Development Corporation and the New York State Urban Development Corporation (E.S.D.C. and U.D.C., for musicality) and describe how they function together. “And that’s how eminent domain works!” it concludes. Jaunty, no?
As far as I know, this is the first attempt to set a land use code to music, but I'd love to hear if anyone knows of another example!
For Steve Cosson, a founder of the inquisitive musical theater troupe the Civilians, dramatizing this wonky subject led to a fertile multiyear examination of politics, race, democracy, money and community, centered on the Atlantic Yards project in Brooklyn. Titled “In the Footprint,” the show mines the New Yorkiest of obsessions — real estate — to present a layered portrait of a city and a neighborhood changing, sometimes under duress. “Atlantic Yards: The Musical!” it’s not.
The songs in “In the Footprint: The Battle Over Atlantic Yards” (the creators call them blogosongs) serve not as emotional showstoppers but as commentary and explanation — the Greek chorus of the digital age. The show, which begins previews at the Irondale Center in Fort Greene, Brooklyn, on Friday, and opens on Nov. 22, is based on interviews with business owners, neighbors, politicians, bloggers and activists touched by Atlantic Yards, the developer Bruce Ratner’s divisive project to reconfigure 22 acres of urban landscape in Brooklyn, displacing scores of residents and small businesses in the process.
There are so few examples of artistic effort based on land use law. If you're in New York during the run, take it in and send us a review!
Jamie Baker Roskie
November 11, 2010 in Development, Economic Development, Eminent Domain, Humorous, New York, Planning, Politics, Property, Property Rights, Race, Redevelopment, State Government | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 13, 2010
As I mentioned in a previous post, former head of Georgia Rural Development for the USDA Shirley Sherrod spoke Saturday night in Gainesville, Georgia. The occasion was a banquet celebrating the 60th Annivesary of the Newtown Florist Club, a Land Use Clinic client. There was a good turn-out for Sherrod's first speech since her ouster and the attempted re-hire by the Secretary of Agriculture. (Read the latest press re: the government e-mails about the controversy, recently obtained through a FOIA request.)
Sherrod's speech was deeply personal. She described the unpunished murder of her father by a white farmer in the 1960s, and how that event made her devote her life to changing things in the South. Her feelings about her father's murder, and the extensive discrimination suffered by black farmers in Southeast Georgia, at first lead her to hesitate in helping a white farmer (when she was running a non-profit agency, before her time at USDA). In telling the story of how she overcame that hesitation to help the white farmer, she became open to the accusations of racism that lead to her ouster, even though she was trying to make the point that, for her, rural development is not about race but about poverty.
Sherrod says she shared that story about the farmer back in July to show others that if she could overcome her own personal demons, then so could others. The story was meant to be used as an example and encouragement for others to come together.
"We can't just work in isolated groups, (all races) need to work together to make the changes in the world that we need to make," Sherrod said.
"It's not about black people by themselves and it's not about white people by themselves. Let's all come together as a community."
I came away with the impression that she plans to write a book about her life, and she vowed at the end of her speech to continue to speak out about racism. It will be remarkable to see where she goes next, in her already remarkable life.
Jamie Baker Roskie
Friday, September 24, 2010
Michele Alexandre (Mississippi) has posted Navigating the Topography of Inequality Post-Disaster: A Proposal for Remedying Past Geographic Segregation During Rebuilding, a chapter from the book Law and Recovery from Disaster: Hurricane Katrina, edited by Robin Paul Malloy for the Ashgate series on Law, Property, and Society (2009). The abstract:
Thursday, September 2, 2010
This week public radio show "To the Best of Our Knowledge" has a really interesting episode on National Parks. The first segment is about the role "Buffalo Soldiers" played in managing national parks in the early 20th century - and why many African-Americans consciously avoid national parks, even today.
There's also an interesting interview with Mark Dowie, author of Conservation Refugees, a book about how land conservation and the creation of wilderness areas has been very much at the expense of indigenous peoples - and how some conservationists and indigenous organizations are working hard to change that.
Jamie Baker Roskie
Thursday, August 26, 2010
I am reading Beyond Katrina: A Meditation on the Mississippi Gulf Coast, by Pulitzer-Prize-winning poet Natasha Trethewey, recently published by the University of Georgia Press. (Professor Trethewey is on the creative writing faculty at Emory University.) The book is a meditation on identity, place, race, and the impact of family. It is also about the environmental damage wrought by industry and the tourist trade prior to Katrina. I knew nothing about Trethewey or her writing before I heard her on WHYY's Fresh Air last week, but I was so captivated by her story that I went straight out and bought her book. At 125 pages, it's a quick but compelling read.
Jamie Baker Roskie
Wednesday, August 4, 2010
Richard D. Marsico (New York Law School) has posted Looking Back and Looking Ahead as the Home Mortgage Disclosure Act Turns Thirty-Five: The Role of Public Disclosure of Lending Data in a Time of Financial Crisis, published in the
Monday, June 21, 2010
Joseph William Singer (Harvard) has posted The Anti-Apartheid Principle in American Property Law, forthcoming in the Alabama Civil Rights and Civil Liberties Law Review. The abstract:
Recently, many federal courts have been interpreting civil rights laws to allow racially discriminatory treatment of customers in retail stores and racial and religious harassment of tenants and home owners by their neighbors. These courts are misinterpreting federal law and ignoring the will of Congress embodied in the Civil Rights Act of 1991 which clarified that market participants have the right to enjoy property and contract rights on equal terms. More important, these courts are wrongly assuming a background norm of negative liberty; they presume that we are free to engage in racial discrimination in market transactions unless statutes clearly and unambiguously limit our freedom. But this is a mistake.
Since the 1960s, the background norm has become a presumption that market participants are not allowed to treat people unequally because of race, religion, sex, or disability. Both federal and state statutes embody this norm and many statutes contain it explicitly. Even the Civil Rights Act of 1866 was amended in 1991 to provide that private persons are entitled to equal contract terms. We aspire to be a free and democratic society that treats each person with equal concern and respect. We now understand that this commitment not only entails the repudiation of feudalism and slavery but the abolition of apartheid, whether imposed by law or enacted by private persons exercising their property rights. Liberty does not mean the absence of restraint on action; it means the creation of a legal infrastructure of a free and democratic society.
Equal access to the marketplace without regard to race is now as fundamental a norm as is the abolition of feudal tenures. For this reason, the common law should be interpreted to include a background assumption that prohibits racial discrimination in housing or public accommodations. Unless statutes affirmatively grant stores the right to treat their customers differently on account of race, courts should presume that they have no such right. Unless statutes affirmatively grant individuals the right to harass their neighbors on account of race or religion, courts should presume that housing rights include the right to be free from such discriminatory harassment. Rand Paul was wrong to suggest that liberty demands freedom to reject customers because of their race; the very opposite is true. American property law now contains a fundamental anti-apartheid principle that ensures access to the marketplace without regard to racial discrimination and the federal courts should start acting on that foundational commitment.
Monday, May 24, 2010
I am really glad to be joining Land Use Prof Blog as a guest blogger. Over the next few weeks, I look forward to contributing to an already lively discussion. My scholarship and practice interests have recently focused on land trusts, land banks and any other form of direct community control of land resources. If you wish to contact me with an idea or item, email me at JKelly[at]ubalt[dot]edu.
2010 marks the 100-year anniversary of the nation’s first racial zoning ordinance. (see Garrett Power’s law review article here). The Baltimore City Council passed it in the wake of nationwide race riots that followed Jack Johnson’s defense of the world heavyweight boxing title. I have just been reading a copy of Antero Pietila’s Not in My Neighborhood: How Bigotry Shaped a Great American City lent to me by my colleague, Odeana Neal. It is an engaging chronicle of de jure and de facto residential segregation in 20th century Baltimore, exploring the exclusion of both Jews and African-Americans.
Pietila brings out the characters and stories that illustrate the high-minded racism of the eugenics era and the market-justified redlining of the FHA-predecessor, the Home Owners' Loan Corporation. The book kicks into high gear with its exploration of the moral ambiguity of “blockbusting” (civil rights advocacy? cynically manipulative profiteering? both?) in the wake of the U.S. Supreme Court’s 1948 decision in Shelley v. Kraemer. Amidst these essential narratives are a few hidden gems such as the stories behind the siting of Morgan College (now Morgan State University) and the Social Security Administration and the roles these institutions played in anchoring Baltimore's largest African-American middle-class enclaves. Those considering the book for supplemental reading in land use and property courses might want to check out this 4/27 NPR local radio interview with the author.
Sunday, May 9, 2010
Friday, May 7, 2010
Robert G. Schwemm (Kentucky) and Sara K. Pratt (Consultant) have posted Disparate Impact Under the Fair Housing Act: A Proposed Approach, a report commissioned by the National Fair Housing Alliance. The abstract:
The issue of whether the prohibitions of the federal Fair Housing Act (“FHA”) extend to practices that produce a discriminatory effect/impact – as well as those prompted by intentional discrimination – is still not fully resolved. While four decades of litigation have produced a strong consensus among the lower courts that the FHA does include an impact standard, the Supreme Court has never ruled on this issue, and defendants continue to contest it. The result is that courts must still deal with this issue, and, to the extent uncertainties remain, the effort to obtain voluntary compliance with the FHA without the need for expensive and time-consuming litigation is undermined.
As the agency primarily responsible for enforcing and interpreting the FHA, the Department of Housing & Urban Development (“HUD”) has a potentially decisive role to play in resolving this issue, because courts accord substantial deference to HUD’s interpretations of the FHA. With respect to the impact issue, HUD has regularly expressed the view in various contexts that the FHA includes such a standard, but the agency has not yet issued a formal regulation on this matter. HUD should do so now, in order to help clarify this issue for courts, litigants, and the public at large.
This Paper seeks to help facilitate this process by providing a detailed analysis of cases and other sources dealing with the impact issue under the FHA. Part I provides some background on this issue. The basic justification for HUD’s adopting an impact regulation is set forth in Part II. Part III discusses the scope and limits of the approach suggested here. Parts IV and V analyze the respective burdens of proofs for plaintiffs and defendants in impact cases under the FHA, thereby describing the particular circumstances that would be appropriate for impact-based claims. Finally, the two appendices provide, respectively, possible language for such a regulation and examples of impact-producing practices that might violate the FHA.
Tuesday, March 9, 2010
Michelle Wilde Anderson (Berkeley) has posted Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe. The abstract:
Across the country, from Aberdeen, North Carolina to Modesto, California, city growth has bypassed hundreds of low-income neighborhoods founded under conditions of racial segregation in the early to mid-twentieth century. Denied annexation to neighboring municipalities, these urban pockets remain unincorporated, covered only by county governance and, in some cases, rural service standards. This article represents the first comprehensive academic treatment of such communities, which I call unincorporated urban areas. Challenging popular assumptions regarding an inner-city of racialized poverty in contrast to a white, suburban privatopia, unincorporated urban areas turn our attention to suburbs where the gravitational pull of the urban economy, affordability constraints, and the desire for homeownership have led to the settlement of low-income communities of color at the unregulated fringe, just beyond city limits.
The article analyzes the adequacy of local government structures serving unincorporated urban areas and the flexibility for reform within those structures. It asks, for the first time, whether two tiers of general purpose local government - a city and a county - offer urbanized areas greater participatory voice, stronger protection from undesirable land uses, improved collective services, and greater household mobility than county rule alone. In so doing, it raises the question of what adequacy in the context of local government might mean, revealing unquestioned assumptions about the allocation of power among cities, counties, and states. New legal issues concerning municipal services, extraterritorial eminent domain, and the risk of land loss come into focus in this investigation of cities inside out - urban life placed outside the reach of municipal government.
Saturday, March 6, 2010
Today is the 174th anniversary of the fall of The Alamo on March 6, 1836 during the Texas Revolution. As the story goes, the vastly outnumbered Texian forces under siege bought crucial time for the rest of the army by holding out for two weeks until succumbing to the Mexican army under General Antonio Lopez de Santa Anna. Cries of "Remember the Alamo" supposedly motivated the Texians at the decisive Battle of San Jacinto.
It would be hard to exaggerate the importance of The Alamo to the founding narrative and historical memory of Texas. Though it was once a Catholic mission, it is secular "sacred ground" to many Texans. I know people who proposed to their spouses at the Alamo. Yet the Alamo has also been seen as symbol of racial or ethnocentric overtones to the Texas Revolution. The importance of the Alamo-as-land has played out in several land use controversies over the last two centuries.
An excellent book that reviews the history of both The Alamo and its place in cultural memory is Randy Roberts & James S. Olson, A Line in the Sand: The Alamo in Blood and Memory (2002). The authors begin with the history of the Alamo itself and the battle, and then spend the remainder of the book talking about what happened to it both as a piece of land and as an icon. Apparently it fell into disrepair (blight?) for decades after Texas independence as the city of San Antonio grew up around it (those who imagine it from the John Wayne movie, way out in the open, are often startled when they finally visit it in busy downtown San Antonio). Then, in the late 19th and early 20th centuries, the Alamo became increasingly the subject of myth-making. This in turn inspired one of the early historic preservation efforts, through a private organization run by some of the most prominent women in Texas. There was a dispute over whether the preservation should be as a private or a public landmark. The book tells this interesting story plus relates a number of other controversies about the Alamo as a symbol of Anglo-American manifest destiny and as John Wayne's vision of the Alamo as a Cold War story.
The book's title invokes both the "line in the sand" supposedly drawn by Lt. Col. Travis when it became clear the Texians were doomed, and also as a metaphor for the cultural contests over the historical memory of the Alamo as symbol. But the "sand" itself remains a hugely popular tourist site and public space in San Antonio.
Monday, February 15, 2010
From this evening's broadcast of NPR's All Things Considered, one of those stories that makes you say, "Huh?" and them "hmmnn." Seems there's a controversy brewing over how this year's census will count prisoners - as part of the population of the place where they are imprisoned, or their community of origin. You might ask yourself, "How is this a story for the Land Use Prof Blog?" Well, as it turns out, the controversy creates an urban/rural (and a racial) split. The prisoners come from African-American and Latino urban areas, and the places where they are imprisoned are rural and predominantly white. Both areas tend to be poor, and with census numbers come federal dollars to address their most pressing issues - including schools and jobs.
It's always troubling when the neediest folks are pitted against each other for limited resources. We'll see if some happy medium can be found on this issue.
Jamie Baker Roskie
UPDATE: Turns out the funding issue is a bit of a red herring, according to Peter Wagner of the Prison Policy Initiative. The real issue is redistricting, and the increase of political influence for districts that have prisons. See his comment to this post, below, which explains the issues more clearly.
Tuesday, February 9, 2010
Asmara M. Tekle (Texas Southern-Thurgood Marshall) has posted Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation, forthcoming in the SMU Law Review. The abstract:
This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal “who” covenants, such as those based on race, age, disability, and often permanently debilitating sex offender status, that run afoul of public policy norms – most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children, whereas the underlying fear in the era of racial segregation was that black men, this country’s original sexual predators, would sexually prey upon infantilized white women. Finally, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders.