June 21, 2010
Singer on the Anti-Apartheid Principle in American Property Law
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.
May 24, 2010
Not in My Neighborhood
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.
May 09, 2010
Oliveri on Discriminatory Housing Ads On-Line & Lessons from Craigslist
Rigel Christine Oliveri (Missouri) has posted Discriminatory Housing Advertisements On-Line: Lessons from Craigslist, forthcoming in
May 07, 2010
Schwemm & Pratt on Disparate Impact Under the Fair Housing Act
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.
March 09, 2010
Anderson on Race, Poverty, and Exclusion at the Urban Fringe
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.
March 06, 2010
Remembering the Alamo
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.
February 15, 2010
"Urban, Rural Areas Battle For Census Prison Populace"
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.
February 09, 2010
Tekle on Restrictive Covenants and Sex Offender Legislation
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.
February 05, 2010
Sustainable Communities Initiative
From the Obama administration:
February 4, 2010
THURSDAY: Top Obama Administration Officials to Promote Sustainable
Communities, Environmental Justice at Smart Growth Conference
WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun
Donovan and Transportation Secretary Ray LaHood will visit Seattle on
Thursday, February 4, to address the 9th Annual New Partners for Smart
Growth Conference. They will be joined by Environmental Protection Agency
Assistant Administrator Mathy Stanislaus.
Speaking before an audience of more than 1,500 key planners, public health
professionals, developers, government staff and elected officials
Secretaries Donovan and LaHood and Assistant Administrator Stanislaus will
discuss the ways their agencies are working together through the Obama
Administration’s Partnership for Sustainable Communities to improve access
to affordable housing, provide better transportation options, and protect
public health and the environment.
“EPA, HUD and DOT are working together to rebuild our foundations for
prosperity, a process that starts with rethinking the ways our communities
grow,” said EPA Administrator Lisa P. Jackson. “The interagency Partnership
for Sustainable Communities is working to give our communities what they
need to grow and thrive with economic resilience and environmental
“I am proud to announce HUD’s brand new Office of Sustainable Housing and
Communities today,” said Donovan. “Working with our partners at DOT and EPA,
this new office will help us streamline our efforts to create stronger, more
sustainable communities by connecting housing to jobs, fostering local
innovation and building a clean energy economy.”
“Our Partnership really is a new way of doing business in Washington, to
help our nation meet 21st century challenges,” said LaHood. “Working
together, we’re creating jobs to revitalize our economy, while helping state
and local transportation agencies to build the capacity they need to promote
livable, walkable, sustainable communities.”
The President proposed $527 million in his budget for an ambitious new
livability initiative at the U.S. Department of Transportation. Its Office
of Livable Communities will be a focal point for initiatives such
as expanding transit in low-income neighborhoods. It will fund a grant
program to help state and local transportation agencies provide more
transportation choices that spur economic development.
The New Partners for Smart Growth Conference, taking place Feb. 4-6, is the
premier national smart growth conference, bringing together experts from a
wide range of disciplines to discuss transportation, housing and urban
development, public health, equitable development, environmental protection,
and other topics. The partnership agencies are working together more closely
than ever before to meet the president’s challenge to coordinate federal
policies, programs, and resources to help urban, suburban, and rural areas
build more sustainable communities.
The New Partners for Smart Growth Conference is managed by the Local
Government Commission, in partnership with EPA, DOT, and other public and
More about the Partnership for Sustainable Communities:
More on EPA’s Smart Growth Program:
More information on HUD’s Office of Sustainable Housing and Communities:
Jamie Baker Roskie
February 5, 2010 in Clean Energy, Climate, Community Design, Conferences, Development, Economic Development, Environmental Justice, Federal Government, Housing, HUD, Planning, Politics, Race, Redevelopment, Smart Growth, Sustainability, Transportation | Permalink | Comments (0) | TrackBack
December 23, 2009
"Surreal Estate/Tiger's Other Mansion"
In our on-going effort to find a land use angle on the Tiger Woods scandal, I give you a recent article from The New York Times T Magazine. The writer describes a mansion Tiger and his wife (at least for now) are building in Jupiter, Florida.
Now I find it hard to believe that any country club would fail to admit the world's best golfer, no matter how non-WASPY he is, or how scandalous his current reputation. I think athletic achievement surmounts race, class and moral differences in our culture. However, the fact that these enclaves still exist raises interesting issues in our supposedly post-racial, egalitarian society.
On a side note on identity issues, for a great take on WASPs and their role in our society, I highly recommend Cheerful Money by Tad Friend. I read it at the same time as President Obama's first book, Dreams from My Father. Reading these two books together gives lots of food for thought on how racial identity informs our lives - and often, our settlement patterns. One of Friend's themes is what to do with the shambling family mansion in the exclusive neighborhood that few of the original WASP families can afford to maintain. Obama writes about his days of community organizing in one of the poorest, most polluted sections of Chicago. A stark contrast, to be sure, but each interesting and informative in its own way.
Jamie Baker Roskie
December 07, 2009
"Life in the shadow of industry"
Today our clients the Newtown Florist Club, and the Clinic, got some great coverage in the Gainesville (GA) Times. This article, hopefully the first in a series, covers the impact of industry on the Newtown neighborhood, something I've discussed in a previous blog post and that one of my students also discussed in his guest post. I'm very pleased with this coverage - this reporter, Ashley Fielding, has really gotten at the history and nuance of this complicated situation, which implicates zoning, public health, nuisance, race, class, community and economic development, and much more. Who says newspaper reporting is a dead art?
Jamie Baker Roskie
December 7, 2009 in Community Design, Community Economic Development, Environmental Justice, Environmental Law, Georgia, Industrial Regulation, Local Government, Nuisance, Planning, Politics, Property, Race, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack
October 28, 2009
Building Economically Healthy Communities
I've been reading the really excellent new book Building Healthy Communities: A Guide to Community Economic Development for Advocates, Lawyers and Policymakers edited by Roger A. Clay, Jr. and Susan R. Jones. Here's the blurb from the ABA website:
This book provides an excellent short history of the CED movement along with some very current perspectives on the current lending crisis and its particular dangers for lower income communities and communities of color. Here's a compelling quote from Chapter 2 "Perspectives on CED in a Global Economy" by john a. powell and Jason Reece:
Given the significance of the credit and foreclosure crisis, we must be diligent to ensure that communities of color are not left out or harmed by the response. Will local strategies to rehabilitate vacant property...produce too much low-income housing, reinforcing concentrated poverty? Will property clearance...result in a 21st-century example of urban renewal, permanently ripping the social fabric of communities of color? Will credit market reforms essentially dry up credit options...while providing no sustainable alternative forms of credit? In light of the crisis, attacks on several targeted policies that benefit communities of color are a chilling preview of what may come...the Community Reinvestment Act (CRA) ha[s] already come under attack...These attacks persist, despite clear contradictory evidence. First time homebuyers were clearly not the cause of the credit crisis; more than half of subprime loans were refinance loans, and only 9 percent of subprime loans went to first-time home buyers...Studies have shown that the CRA has been successful at expanding minority homeownership through fair and sustainable loans.
I'm looking forward to reading more about topics like community benefits agreements, the effect of Kelo on CED, and economic development and environmental justice.
Jamie Baker Roskie
October 13, 2009
"You Don't Have to be Black to Protect Black History"
My friend Christine McCauley, executive director of Buckhead Heritage, just told me about a very interesting historic preservation case. It seems that a developer wants to move a black graveyard in Buckhead, which is now an very upscale area of Atlanta. The graveyard is there because in the early part of the last century there was a thriving black neighborhood in this area, before the residents were displaced for a park. Now a developer wants to move the graves and a descendant of family members buried there is suing to stop it. Read more here and/or follow events on the BH website. My headline from this post is my favorite quote from the article, from a former mayor of Atlanta.
October 08, 2009
Environmental Justice & Land Use
Tomorrow in the Land Use Clinic seminar we'll be talking about environmental justice. The Clinic got involved in environmental justice issues about two years ago, at the request of our colleagues at the Atlanta public interest law firm GreenLaw. GreenLaw has been involved in environmental justice issues for many years now - environmental justice being defined by the EPA as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, culture, education, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." GreenLaw asked for the Clinic's help in working for environmental justice in the drafting and application of local land use law in Georgia communities.
According to Clifford Rechtschaffen and Eileen Gauna, authors of Environmental Justice: Law, Policy & Regulation, the disproportionate siting of environmental hazards in minority neighborhoods has its origin in land use and zoning practices over the last century. Some of the decisions were based on deliberate racism - e.g., restrictive racial covenants and racially discriminatory zoning. Urban Renewal played a role in displacing thousands of black residents from residential neighborhoods.
Also, according to Yale Rabin, in the early part of the last century many jurisdictions engaged in what he calls "expulsive zoning," by zoning areas predominantly occupied mainly by blacks for industrial or commercial uses, thus displacing the residential uses in these zones. Robert Bullard refers to this strategy as "PIBBY" or "place-in-blacks'-backyards."
Other scholars, including Robin Saha and Paul Mohai, have pointed to economic factors in disproportionate siting and zoning of industrial uses in minority neighorhoods, including low property values in these areas and the reduced likelihood of community opposition (since better educated, more affluent communities are better able to wage opposition campaigns).
Rechtschaffen and Gauna also implicate "structural racism," which encompasses more than explicit racism, classism or political factors:
A broader view of discrimination encompasses actions that are not intentionally racist, but because of the structure or workings of social and political institutions, have discriminatory effects. For example, an all white zoning board may render decisions with discriminatory effects because of unconscious racial prejudices, or because minority citizens, who do not live in the same neighborhoods and are not part of the same social networks as the board members, have less access to them...seemingly technical criteria - such as that a facility should not be sited in proximity to schools, hospitals, or other sensitive institutions - can discriminate against minority residents who because of past and present housing discrimination disproportionately live in areas without such facilities.
Whatever the varied causes, research by John A. Hird and Michael Reese and others demonstrates that, regardless of class or income, pollution is distributed in a way that disproportionately affects people of color (although some subsequent research refutes these findings).
It's a complicated issue. I'll talk about solutions to these problems that we are trying to implement with our clients in subsequent posts.
Jamie Baker Roskie
October 05, 2009
Affordable housing and racial dialogue
Over the weekend I read with interest a piece in The New York Times about a battle in a New Orleans suburb over the building of affordable housing. The author paints it in the particular light of the struggle to rebuild after Katrina, but this is a dynamic that is prevalent elsewhere. Much of it has to do with race, and not just in St. Bernard Parish, Louisiana. I see it many places that I work with affordable housing organizations, much as we might wish we lived in a post-racial world. It seems that when the possibility arises that minorities might move into a non-minority neighborhood the temperature goes way up, and ugly things are often said and done.
One reason to have hope, though, is that the Kellogg Foundation is beginning to support community-based work on racial healing. They plan to make it a local, regional, and national dialogue. If all goes well some of my colleagues here at UGA will be involved in this dialogue, so I look forward to posting more about it as time goes on.
Jamie Baker Roskie
P.S. Over the weekend my co-editor Matt Festa blogged about the end of the universe as evidenced by three Starbucks on one corner. I've discovered the true end of the universe - there will soon be a McDonald's at the Louvre. Naturally the French are outraged.