August 30, 2006
Teaching Race, Class, and Environmental Justice in Property
I am still envious of all of you Property Profs out there teaching Property to first semester first years -- so am back to thinking about teaching. Because my writing focuses on the intersection of race and property/land use, and much of my work as a lawyer was representing poor communities of color against noxious land uses, I have focused a lot of energy figuring out how best to teach these issues in Property.
For those using Dukeminier & Krier, race arises immediately with Johnson v. M'Intosh. Following the suggestion of Alice Kaswan (a truly extraordinary Property Prof), along with the discussion of the US's treatment of Native peoples, I also use this case to begin the discussion of how courts have historically treated a variety of groups differently. State v. Shack also provides a terrific opportunity to discuss how to balance property rights with other critical human rights.
I have had to supplement D & K at other junctures. The Sixth edition of D & K has cut the housing discrimination section considerably, taking out the cases used to show burdens of proof. Thanks to Florence Roiseman (another amazing Property Prof), I hand out a selection from The Black Notebooks, a memoir by Toi Derricotte, about her experience trying to buy a house in Montclair, NJ in the 1970s. Derricotte is a wonderful writer and her moving description allows students who have not experienced discrimination first hand an opportunity to empathize -- but I also use it to discuss lawyering skills. I have the students role play as her lawyer and we work through what causes of action she might have.
I also supplement this discussion by providing students with the Second Circuit's opinion in United States v. Starrett City Associates, which is a case in which DOJ (in the early Reagan administration) challenged the Starrett City corporation's attempt to maintain an integrated low to middle income housing project by using quotas to keep whites as a majority. The court holds that the quotas violate the Fair Housing Act, with a stinging dissent by Judge Newman who contends that the purpose of the FHA is to promote integration and that the quotas were used for that purpose. It is a terrific case for students to think about the significance of housing segregation and the role of housing segregation in leading to other forms of racial injustice, including environmental and educational. However, because the quotas had the effect of keeping people of color out of Starrett City, the case is quite complex.
Nuisance and Zoning are the two most obvious places to talk about environmental justice issues. As I detail at length in Viewing the Cathedral from Beyond the Color Line: Property Rules, Liability Rules, and Environmental Racism, common law courts removed themselves as arbiters of land use disputes in common law nuisance cases involving industrial polluters in part because they assumed that legislative and regulatory regimes were in better positions to make such decisions. But, I ask my students, what if these regimes have failed some groups of people? Do common law courts have an obligation to reassert common law rights? This usually leads to an interesting and lively discussion. I use Camden, New Jersey as a case study for students because Camden was not zoned until the 1970s and then one section (the African American community of Waterfront South) was zoned "industrial-residential."
D & K contains a short list of articles about environmental justice on p. 917, but it is (as it must be) very incomplete. For a wider array of sources, I suggest Environmental Justice: Law, Policy and Regulation. Here are some highlights: For more case studies and excellent discussions of how communities have used law and organizing against unwanted land uses, I recommend Sheila Foster's work and Luke Cole's writing. For an overview of environmental justice and a thoughtful analysis of causation, I suggest Alice Kaswan's article Distributive Justice and the Environment. If you are a zoning person, I have found Craig Anthony Arnold's article, Planning Milagros: Environmental Justice and Land Use Regulation, detailing the effects of "expulsive zoning" very interesting.
I would be interested in other Profs' experiences including race and class in first year Property courses. I have found students receptive and interested, as long as I don't seem to dictate political conclusions.
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Rachel, I like the idea of Starrett City (which used to be in D&K). It occupies a warm spot in my heart because it was the basis for one of the questions on the constitutional law final I took way back in the spring of 1988.
I also think, though, that there ought to be some cases where a regular old plaintiff actually prevails.
I have read Derricotte's story, though I plan to now that you've mentioned it.
Posted by: Al Brophy | Aug 30, 2006 11:17:37 AM
I cover race and class issues quite a bit, and like Rachel I find that the students are receptive to the discussion. I expressly discuss race in Johnson v. M'Intosh, the FHA, partition of tenancy in common (the heirs' property issue discussed in one of my posts from yesterday), land-use (esp. exclusionary zoning), and takings (in discussing Kelo; I also mention the historical evidence that Madison intended to have the takings clause apply to the abolition of slavery, and talk about what we might take from this fact). I find that the discussion goes best when the issues are naturally presented by the material being covered, which reduces the chances that the students will perceive the issue as being forced. So in this context, I think that cases that present the issue are best.
Posted by: Ben Barros | Aug 30, 2006 1:17:07 PM