Friday, February 3, 2017

#PropertySchmooze Panel 2: Domestic Human Rights & Fair Housing Rights


Taking the baton from my co-blogger, Sally Richardson (Tulane), it’s time for panel #2 here at the Property Schmooze featuring a discussion of access and fairness in housing policy.

First up is none other than the hostess of the Schmooze herself, Lisa Alexander (Texas A&M), talking about her paper, Bringing Home the Right to Housing. First, Lisa used her review of Matthew Desmond’s book, Evicted, as a springboard by explaining how his work provides a basis for highlighting how important the right to housing is in today’s post-crisis American economy. Using this observation, her paper asserts that our conception of basic human rights/needs and our conception of housing needs are greatly out of balance in the political discourse. Relatedly, Lisa noted the mismatch between the supply and demand of housing, pointing out that homeownership is at its lowest rate due to the high cost of housing and that affordable rental units chronically elude most Americans. Moreover, relative to the need for housing, subsidies to these individuals (vouchers, public housing, federal grants) are quite small and inadequate. Because of the diminished role that the federal government has been playing (and will likely continue in this fashion) in meeting the housing need, much of the responsibility will fall to cities and local governments. To that end, she asserts in this project that the right to housing, although not a legal right in the US, can serve as a useful normative framework for localities to use in devising plans for new housing arrangements that more effectively balance the rights of owners and non-owners. Moreover, Lisa explained that when local governments use their powers to legitimate arrangements that mimic the right to housing, they are realizing the benefits of the right to housing, even in the absence of it being an actual right. Lastly, she hopes that once local governments engage in this democratic experimentalism, that federal decision-makers will see the benefits and seek to advance a right to housing (and its benefits) more broadly.  To more fully explore how local governments can do this she looks to legal devices such as declarations, resolutions, ordinances, conditional use permits, planned unit developments, building code amendments, impact assessments, and state laws exempting certain localities from building code requirements.

Next up is Mark Roark (Savannah Law School) whose paper Under-Propertied Persons builds on his prior work and explores the concept of property as creating insider-outsider relationships that have significant impacts on homelessness and poverty. He focuses on the two poll stars of the property discourse: waste and nuisance. Mark notes that when we talk about waste we think about autonomy and the ability to self-determine and build value. Nuisance, on the other hand, is spoken of in terms of expanding the boundaries of property and maintaining its value. He then explores these concepts through the lens of the environment and the architecture of public housing, looking to a number of specific locations including St. Louis and Chicago. Mark draws together the literature on how we speak about homelessness and poverty and gives it life through specific examples of how public housing is physically constructed and maintained. This includes a discussion of the stigma that becomes attached to those who live in public housing, which in turn prevents the residents from being more fully engaging in community building.

Last but certainly not least is Lynn Blais (Texas). Her paper, Disparate Impact as Evidence, looks to unpack the disparate impact theory of housing discrimination claims under the Fair Housing Act, particularly after Texas v. Inclusive Communities. She explains that although equal protection claims can generally overlap/intersect with disparate impact claims, the theory of disparate impact (from an historical perspective) is meant to be more expansive than a mere equal protection claim. Lynn does this by looking at how the disparate impact plays out in various different federal legal regimes aside from housing. She notes the difficulty in making out a disparate impact claim because of the struggle to obtain the necessary statistics. This usually results in these cases being dismissed as courts focus on the statistical aspect of the claim and less on the actual evidence of discrimination. Her goal in this piece is to push outward the idea of due process and fair housing. In doing so she hopes to push the Court toward better developing a more robust framework for making out an intentional discrimination case.

See you after lunch when we'll be back for panel #3!

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