Saturday, February 4, 2017
The #PropertySchmooze is coming to an end with the keynote speaker, Lee Fennell (Chicago), who is presenting her work, Searching for Fair Housing.
Lee begins her paper by bringing up an asymmetry in housing: racial discrimination against homeseekers (which is illegal) versus racial discrimination by homeseekers (which is presumed to be "perfectly legal"). The common rationales for why discrimination by homeseekers is allowed is two-fold: (1) homeseekers do not have a big enough impact on the market and (2) the law should not impact homeseekers' decision making. Lee questions whether these are vaid rationales and whether the law has some role in curbing discrimination by homeseekers
As Lee notes, sorting the housing stock by race has happened for a long time. Individuals have long asked friends, neighbors, real estate agents, etc., what neighborhood is the best to live in, and race may come up in that conversation. Now there are websites that allow you to easily see what the racial make up is of any zip code, so discriminatory information is even more readily available.
Restricting someone from searching for houses based on race could be seen as restricting the homeseeker's autonomy. But, as Lee points out, homeseekers' autonomy is alreaday limited in part because home owners cannot choose their neighbors. We know from Shelley v. Kraemer, restrictive covenants cannot discriminate against individuals based on race, so a home owner cannot restrict who his neighbor is based on race, thus limiting the home owner's autonomy.
Lee then discusses the gap between the right to be free from discrimination and the duty not to discriminate. Lee calls the gap used by homeseekers the "search gap," referring to the discrimination largely of white individuals against black individuals when searching for houses. She cites numerous studies that demonstrate white individuals rank neighborhoods with high numbers of black home owners lower than white individuals rank neighborhoods with mostly white home owners.
So what to do? Section 1982 of the Civil Rights Act actually covers this to some extent. The section says "All citizens of the United States shall have the same right, in every State and Territoy, as enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Section 1982 might be applied to homeseekers because everyone has the right to seel property free from discrimination. Lee also suggests that we could impose liability for ads and assisted searches under the Fair Housing Act. Or we could use disparate impact as a mechanism for taking up the slack where we cannot, or will not, reach biased searches. And Lee suggests that we could affirmaively further fair housing in the search domain.
And with that, the #PropertySchmoozes comes to a close. Thanks Texas A&M, and specificlly Lisa Alexander and Thomas Mitchell, for hosting this great event!