Fair Housing Act Fails to Address Exclusionary Zoning and Housing Discrimination

NOT WELCOME: AN ALALYSIS OF DISCRIMINATION IN HOUSING THROUGH EXCLUSIONARY ZONING A THESIS [Instructor Name] BACHELOR OF ARTS BY [University] HAMPTON, VIRGINIA MAY 2020 ABSTRACT DEPARTMENT OF POLITICAL SCIENCE AND HISTORY CANDIDATE, BACHELORS OF ARTS, 2020 Not Welcome: An Analysis of Discrimination in Housing Through Exclusionary Zoning April 27, 2020 Despite the many strides that the United States has made towards integration, there is still fair housing issues that prevent communities from being fully integrated. The Fair Housing Act was passed in 1968, but today, exclusionary zoning is practiced in order to continue to isolate low income residents, consequently, minorities. The language of the Act causes low and moderate income residents to be excluded because “income” is not included. The introduction of the paper will discuss what exclusionary zoning consists of and the racial history that led to segregation in real estate. Also, the introduction will present the research question, thesis statement, methodology, definition of concepts, delimitations, and significance of the study. Literature will be reviewed on exclusionary and inclusionary zoning practices and the impact that the Act has had on housing since its enactment. The Elitist and Systems theories will be used to conduct the research on how effective the Fair Housing Act is, despite its exclusion of “income” as a protected class. The fair housing cases that are used for research will be thoroughly analyzed and a conclusion will be made as to whether the thesis statement is supported or not. Chapter 1: Introduction Background to the Problem This paper is about the effectiveness of the Fair Housing Act of 1968 in America and whether it has welcomed people into communities or excluded them. This chapter will give background to the entire paper by explaining concepts, introducing definitions, explaining the methodology chosen, the thesis statement, delimitations, making clear the research question, and what is to come in the following chapters. This will help the reader to better understand the thesis and the significance of the topic to the field of political science. For many Americans, 1968 was a tumultuous year, because the death of Martin Luther King Jr., the death of Robert Kennedy, and the announcement that Lyndon B. Johnson would not run for reelection. Despite the uproar that the nation was in during this time, many citizens initially felt that the great nation of the United States made great strides with the passing of the Fair Housing Act of 1968. During the 1960s, Civil Rights leaders felt responsible for pressuring President Johnson to pass this law, because African Americans continued to fight for desegregation, which sometimes resulted in race riots. Racism and segregation existed in all aspects of African Americans’ lives during this time, from housing to schooling to voting, and President Johnson is recognized for helping move America from that with the Voting Rights Act of 1965 and the Fair Housing Act of 1968. So why was the Fair Housing Act necessary in the United States? Since slavery ended in 1865, racism plagued the United States and caused segregation which led to African Americans being held back. From the 19th to the 20th century, African Americans were not able to vote, attend certain schools, or live in certain neighborhoods. In 1916, African Americans migrated from the south to urban cities up north in order to obtain a better life and more opportunities. When the number of blacks increased, they could no longer reside only in these black communities, they overflowed into white communities, which angered the whites. This caused race riots and in 1920, state and local governments made laws that would prohibit blacks from living in white communities. The need for federal law to desegregate housing communities grew strong, and the civil unrest continued. Although many Republicans opposed the Fair Housing Act, the death of Martin Luther King Jr. changed votes and got the law passed. Initially, “the landmark legislation prohibited racial discrimination in the sale and rental of housing, and authorized the U.S.” Today, the Act includes the protection of race, color, national origin, religion, sex, familial status, and disability. The Fair Housing Act has protected disabled persons (Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc.), transgenders (Smith v Avanti), African Americans (Jenkins v. Housing Authority of the Town of Mansfield) and many others, but the law does not protect those who are low- and moderate income. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., it was shown that disparate impact has standing in court, but the problem is that only those classes in the Fair Housing Act (religion, sexuality, disability, race, national origin,) are protected, despite the facially neutral laws that statistically exclude low-income households from jurisdictions. However, income cannot be a basis of a fair housing lawsuit, therefore plaintiffs have to claim disparate impact even though renters have blatantly denied residents’ housing vouchers and developers have rented to minorities in certain developments they own (mostly predominantly black communities). In some cases, disparate impact can be harder to prove because discriminatory language based on the protected classes is not always clear, especially since most times it is cases of covert discrimination. Many citizens have thought that this legislation was progressive and was a step in the right direction for the United States. What is not commonly known is the exclusion of income-based discrimination, which would include persons based on income (low and moderate). Communities today are still segregated, by income and subsequently by race. Low- and moderate income households are excluded by large lot size requirements and the rejection of housing vouchers in some high-income communities. The regulations that require a minimum lot size for homes are exclusionary, and this practice is most commonly known as exclusionary zoning. Disparate impact has been addressed where laws that facially appear indiscriminatory actually are. Although disparate impact can be used as an argument in court, low-income households are not able to use it because they are not a protected class in the Fair Housing Act. Because the United States is a capitalistic country, can it protect low-income households while still preserving the right of private developers and renters to choose who they rent to? Research Question The main question that this study plans to answer is: “Is the Fair Housing Act of 1968 effective, although it does not include ‘income-based discrimination,’ which is practiced in exclusionary zoning?” If income can be a factor that renters use to include or exclude, why are those with low- and moderate incomes not protected under the law? Is it because the United States believes that socio-economic status that can easily changeable in a capitalistic society and the land of the free? Statement of Problem The Fair Housing Act of 1968 is not effective because it does not include “income based” discrimination, which is practiced through exclusionary zoning. Methodology In order to conduct this research, case studies through an examination of Supreme Court hearings will be used. The court cases studied to examine exclusionary zoning practices will be: Warth v. Seldin, Ybarra v. City of Town of Los Altos Hills, and Southern Burlington County N.A.A.C.P. v. Mount Laurel Township, specifically because the plaintiffs felt excluded based on income. The fair housing case where a class action lawsuit was filed against James Soderberg of Soderberg Apartment Specialists (SAS) and MSP Crossroads Apartments LLC (MSP) was used to show how income was the discriminating factor in a case. A qualitative method is the best for this study because it will show the cases of jurisdictions that have been affected by zoning practices, fair or unfair. “The information or data collected and analyzed is primarily (but not exclusively) nonquantitative in character, consisting of textual materials such as interview transcripts, fieldnotes, and documents, and/or visual materials such as artifacts, photographs, video recordings.” It will show the impact that the law created in 1968 has had on households to truly show whether is effective or not. Definition of Concepts Listed are concepts that need to be defined in this paper in order to eliminate any ambiguity. These definitions will make clear the context of these definitions used in order to understand the research conducted in this study of the effectiveness of the Fair Housing Act of 1968 and exclusionary zoning. Exclusionary zoning practices- ‘The specific regulations that are most often criticized as exclusionary are those that specify minimum lot sizes for single-family homes.” “Exclusionary zoning regulations create barriers to inclusion by imposing minimum lot size requirements, requiring aesthetic uniformity, and forbidding builders from developing apartment buildings or townhouses in certain areas, thereby assuring access only to those of certain financial means.” Inclusionary zoning- “Inclusionary zoning is a local regulatory tool that requires or incentivizes the provision of new affordable housing by developers as a condition for a residential development permit. Most IZ programs preserve the affordability of homeownership units using either affordability covenants that place ceilings on resale prices or a shared equity approach that redistributes some portion of the gain in home equity.” Disparate impact- “’Disparate impact’ housing discrimination, meaning discrimination that happens regardless of whether a policy was designed with the intent to discriminate.” “…though neutral on their face, and even neutral in terms of intent, function as barriers … [that] operate invidiously to discriminate on the basis of racial or other impermissible classification.” Section 8 voucher program- “Section Eight Housing Choice Voucher (HCV) program, a federal program that makes rent payments directly to landlords on behalf of eligible low-income households.” Delimitations The most challenging limitation to the study is that it is not possible to travel to every state to assess the exclusionary and inclusionary cases that have occurred in each jurisdiction. Although research has been done on many of the cases in the cities in the United States, it would be helpful to interview jurisdictions who have heavily been affected by exclusionary zoning laws. Also, to assess the effectiveness of the inclusionary laws, it would be helpful to interview policymakers and residents to determine whether the stakeholders in the community feel that the laws are effective. Research has been done on some popular cases, but not every state’s laws. Because there are different factors in each state and the jurisdictions within the states that affect housing laws, it is hard to make a generalization about the law’s effectiveness in the entire country. To some, the law may be seen as effective because it protects those who bring cases of discrimination based on race, color, national origin, religion, sex, familial status, and disability, but to others, the effectiveness is based upon the fair housing of all classes that United States citizens may fall under. Significance of the Study This study is important because the goal of the Act is to protect households who could possibly be discriminated against while buying/renting a house, getting a mortgage, or seeking housing assistance. Although there have been great strides in the United States, this law is still needed because of the history of discrimination that have excluded minorities, gays, disabled, and more from housing. However, the effect of the law cannot be successful if it doesn’t include “income” as a protected class because low- and moderate income households have been discriminated against just as much as the other classifications included in the Act. Research has been done on the positive effects of the Act, what exclusionary zoning is, inclusionary zoning as a solution; but this paper will focus on the inclusion of “income” into the Fair Housing Act. Rather than fix the problem for the short-term, the long-term solution is to change the law that excludes the low- and moderate income persons initially. Organization of the Remainder of the Study In chapter 2 of this paper, there is a literature review of research already done on the topic of the Fair Housing Act of 1968, exclusionary zoning, and inclusionary zoning. Chapter 3 of this paper will discuss the theoretical frameworks used to conduct this study and the associated theorists. In Chapter 4, the research design is discussed along with the variable and study sample. Chapter 5 is an analysis of the research conducted and the findings. Chapter 6 will be a summary of all the chapters and Chapter 7 is the conclusion of the study. This chapter has given background to the topic of the effectiveness of the Fair Housing Act despite its lack of “income-based” protection for citizens who are low- and moderate income. It provides definitions, the methodology, the delimitations of the study, the research question, and the thesis statement. The following chapter will examine literature that has analyzed the Act and the effects that it has had on households since 1968. Chapter 2: Literature Review This thesis requires comprehensive research to be done on the effects of The Fair Housing Act of 1968, exclusionary zoning in the United States and loopholes that allow for being excluded from high-income neighborhoods. One of the main causes is the prejudices engrained in American society since slavery ended. Although when the Fair Housing Act was first enacted, it was seen as a great stride for the Civil Rights Movement, research has been done that shows the many negative effects of the law. The purpose of this chapter is to analyze the literary works on the Fair Housing Act and exclusionary zoning; explaining definitions, history, and the effect of the law in America. Douglass S. Massey’s “The Legacy of the 1968 Fair Housing Act” discusses events leading up to the enactment of the law, why the law was created, and its impacts. During the Great Migration in 1916, blacks migrated from the rural south into urban cities, which caused whites to fight back with violence to keep the blacks out of their neighborhoods. “At the time, levels of black residential segregation were extreme, higher than any group had ever experienced before or since”, which is not surprising, considering the fact that the abolishment of segregation in Brown v Board of Education (1954) did not occur yet. Massey explains that in order to separate blacks in all aspects of life (economically, politically, and socially) whites felt it necessary to be physically separated from the inferior race. Segregation in neighborhoods was first a social practice, but in 1920, many cities began to create legislation in order to separate black and white housing communities specifically. After World War I, migration was so popular that blacks started to “overflow” into white suburbs, and race riots were a result of this. Because real estate property was destroyed during the riots, the real estate industry also wrote policies to enforce the separation of races. Real estate brokers began implementing discriminatory language in their code of ethics and in 1927 restrictive covenants were introduced to continue to segregate communities. Lyndon B. Johnson made efforts to pass the Fair Housing Act as Republicans continuously rejected; but the death of Martin Luther King Jr. changed some votes, and the bill was passed on April 10, 1968. Many actions were banned by the law, such as the refusal of renting/selling to blacks, racist real estate advertisements, the lying of dwelling availability by real estate agents, and disclosing information about new residents to encourage whites to sell their property. Some loopholes to the law were that it initially only applied to 80% of the housing stock and when discrimination was reported, the Department of Housing and Urban Development (HUD) held only a conciliation between the offender and victim. This article relates to this paper because it is important to first know the history of the Fair Housing Act of 1968 to analyze the effectiveness then and now. At the time of its enactment, racial tensions were very high in the United States and segregation of the races was a norm. Massey’s key points explain the ineffectiveness of the law in 1968, such as: the law only applied to 80% of the housing stock (eventually changed); the Democrats eliminated the stern consequences for offenders (cease and desists and public hearings) to convince Republicans to pass the bill; and mortgage lending was not included. These are examples of how the bill was not effective from its creation by not applying to everyone, not truly enforcing the law, and not addressing mortgage lending, which is an essential part of purchasing a home. According to Rachel Cohen in “Taking Back the Suburbs The Fair Housing Act at Fifty,” today there is more onus for HUD and The Department of Justice (DOJ) to enforce the laws under the Fair Housing Act than in the 1960s. The article discusses the effects that The Fair Housing Act has on society as of 2018. Cohen explains that the law has broader goals than it did in 1968; now there are 7 categories that are prohibited under the law: race, color, religion, sex, national origin, disability, and families with children. Despite the “progress” of American society when it comes to racial discrimination, Cohen referenced a study done by the University of Chicago that said “the proportion of white respondents favoring laws banning housing discrimination rose from 37 percent in