ExcerptedFrom: Richard Chused, Strategic Thinking about Racism in American Zoning, 66 New York Law School Law Review 307 (2021/2022) (137 Footnotes) (Full Document)


RichardChusedThis essay arises out of my experience participating in New York Law School's unique seminar on Race, Bias, and Advocacy described in Professor Edward A. Purcell, Jr.,'s introductory essay. In that piece, Purcell notes that one of the basic hypotheses underlying the seminar is that the “neutral” and “colorblind” nature of the formal law does not necessarily mean that it is always “neutral” and “colorblind” in terms of its sources, content, applications, and consequences. There are many aspects of law where race is never formally mentioned and is neither recognized nor recognizable in the issues, concepts, principles, and doctrines that define their content. Nonetheless, race may actually be a relevant and even critical factor in the implicit assumptions, standard operations, or practical consequences of the law in those fields. Significant segments of American property law display the truth of that hypothesis. As the teacher of the property law session within the Race, Bias, and Advocacy seminar, my primary task is to select a small slice of that enormous body of law as a vehicle to demonstrate how a contemporary, superficially neutral regulatory system may operate in ways that hide both a deeply racist history and ongoing behavior with acutely discriminatory effects.

I chose land use law and, specifically, zoning regulations. Though zoning statutes and rules arose from a distinctly racist social milieu and early statutes were explicitly designed to separate white and Black neighborhoods, the statutes that became models for twentieth-century legal norms were themselves linguistically neutral as to race and ethnicity. Over time, racialized expressions faded from many public fora, and civil rights statutes found their way into federal, state, and local codes, but segregated housing patterns remained. Much of this outcome can be traced to the century-long ways that zoning practices, combined with government-sponsored redlining, the white real estate industry's intolerance, and institutionally-sponsored racial covenants, matured and ripened into a system that efficiently sustained segregated housing patterns.

The class that I teach is designed to describe the history and contours of zoning's racial origins, the reasons why those origins became embedded in zoning practice and effectively maintained segregated housing patterns, and the contemporary search for possible antidotes. This essay is a tentative effort to describe the nature of the class, the materials used, and the conclusions that I hope to draw from the inquiry. The class is deeply historical, running from the turn of the twentieth century through the present day. It is no surprise that the negative impacts from use of racial classifications have long been present in land use law. Coping with racism in the operation of American zoning law has been a major challenge since the onset of regulatory efforts to control land use patterns at the end of the nineteenth and beginning of the twentieth centuries.

With the 1985 publication of Kenneth Jackson's classic book Crabgrass Frontier, it became widely accepted that virtually every arm of the residential real estate industry in the United States during most of the twentieth century was ingrained with practices explicitly designed to exclude Black people from white neighborhoods. This knowledge, however, does not make for obvious ways to solve the resulting problems. The class therefore begins with earlier overt and widely accepted exploitation of race before moving to the segregated housing patterns resulting from marginally more subtle but certainly not obscure practices in the last half of the twentieth century, and to those using “neutral” standards having enormous racial effects. Those inquiries are followed with a review of legal “solutions” tried during the second half of the twentieth century that, for the most part, failed to resolve the problems.

The class ends with a search for new ways to address segregated housing, including some strategies that focus more on the nature of the housing market than on explicit limitations of racial restraints. The overall message encourages students to consider structural changes that avoid expensive and time-consuming litigation strategies as well as other cumbersome ways of controlling racial bias, and focus instead on the use of incentives and tactics to enhance the development of diverse communities. If typical legal tools available for contesting racial practices are difficult to use or hard to manage, then clever, strategic decision makers must search for other ways to cope.

[. . .]

The final problem outlined above has no obvious answer, but it always provokes interesting and frustrating student comments. While there is widespread approval of the general ideas described in articles discussing Maryland's inclusionary zoning and London's rehabilitation project, no one really expects either solution to rid the nation of discrimination in housing markets. It is an area justifiably filled with much pessimism, especially in the present political milieu in which legislative approval of spending funds to ameliorate problems of the less well-off is so difficult to enact. But my hope is that, by the end of the class, participants depart with two basic ideas.

First, in areas where we all know that race discrimination is operating but difficult to attack directly, indirect approaches are likely to be the most successful. Solutions to difficult problems are often found not by frontal attacks but by subtle and steady surprise. These are not solutions typically found by one person working alone. Group meetings, coalitions of interested groups, and creativity are required. Lawyers often find it difficult to work with persons different from themselves and outside the legal world, but that is what is required. A course on implicit and non-explicit bias requires not only careful thinking about discriminatory housing problems, but also some retraining of the legal profession to seek structural solutions that do not necessarily rely on traditional litigation remedies typically taught in law school. Instead, more thought needs to be given to the use of community organizations, creative organization, legislative pressure, and crafting wholly new solutions.

Second, and perhaps most important, finding solutions to problems of housing and race discrimination is deeply challenging. Since 1980, the amount of government funds spent on constructing and maintaining below-market-rate housing has risen very slowly. It is hard to imagine how well-conceived housing programs can be effectuated without a willingness to spend considerable sums of money. In today's world, it is difficult to envision a long-term solution for our long-term cultural unwillingness to spend money on social programs. Finding sources of money in a society uncomfortable with, if not hostile to, spending programs for poor people requires enormous creativity. Whether the recently enacted programs to dramatically increase spending on social programs will last and additional funds will be appropriated is an open question. Perhaps it is a hopeful sign. But given the long-term history of racial difficulties, solving our housing problems may be a long-haul task.

Professor of Law, New York Law School. The author expresses his gratitude for the work Professor Edward A. Purcell, Jr., has done in organizing both the seminar and this collection of essays.