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Excerpted From: A. Mechele Dickerson, Systemic Racism and Housing, 70 Emory Law Journal 1535 (2021) (252 Footnotes) (Full Document)


Racist housing law and policies were legal and the norm in this country until the end of the 1960s. It is no longer legal to discriminate against people in housing and mortgage lending markets based on their race. Still, Blacks and Latinos struggle to find affordable housing to buy or to rent because of the legacy of racist laws and policies and also because current race-neutral laws and policies privilege upper-income homeowners, who are disproportionately white.

This Essay explains how U.S. housing markets systematically discriminate against nonwhites and why prior (now illegal) laws and practices created the existing racial homeownership and wealth gaps. Part I describes how public and private laws, policies, and practices helped whites buy homes after the Depression, but made homeownership virtually impossible for Blacks. Because early federal and state policies deemed Black neighborhoods to be unsafe, unstable, and blighted, it was harder for Black homeowners to buy homes and increase their household wealth or for Black renters to find affordable rental housing.

Part II describes the role white private actors (homeowners, realtors, investors, lenders, and appraisers) played both in increasing housing costs for Blacks and in excluding them from all-white or stably integrated neighborhoods. For example, white homeowners kept Blacks from buying homes in white neighborhoods by agreeing with each other that they would not sell or lease their homes to Blacks. In addition, white real estate speculators made it harder for Blacks to buy high-appreciating homes in stably integrated neighborhoods by using scare tactics in “blockbusting” schemes that caused white homeowners to flee neighborhoods once Blacks moved in. Blockbusting triggered white flight, which caused integrating neighborhoods to re-segregate, and also caused additional white homeowners to sell their homes at below-market prices (to the speculators), which depressed the value of the homes Blacks recently purchased in those neighborhoods.

Although overtly racist public laws and policies are no longer legal and private actors cannot legally discriminate against renters or potential homeowners based on race, Part III shows how federal tax laws and exclusionary land use laws continue to privilege existing homeowners and increase housing costs for economically vulnerable families who seek affordable housing. Part IV then shows how private actors--like banks, real estate agents, and homeowners' associations (HOAs)--increase the housing costs of Blacks and Latinos and continue to keep them and economically marginalized residents out of high-opportunity neighborhoods.

Part V argues that years of systemic racism in housing laws and policies have created racial homeownership and housing disparities that are exacerbated by newer practices, like gentrification, that reduce the supply of affordable housing. This Essay concludes by arguing that policymakers should enact anti-racist laws and policies to remedy the systemic racism that permeates housing markets. Part VI proposes a range of anti-racist solutions (enacting inclusionary zoning laws, repealing homeownership tax subsidies, and giving developers incentives to build affordable housing), which would help make housing more stable and affordable for nonwhites and could also help increase their household wealth.

[. . .]

Federal, state, and local housing policies have consistently made it easier for whites to become homeowners and increase their household wealth. These same policies made it harder for Blacks and Latinos to buy homes or even find affordable rental housing, particularly in high-opportunity neighborhoods. Given how deeply embedded racism is in this country's housing laws and policies, Blacks and Latinos will continue to languish in housing markets unless federal, state, and local governments commit to adopting anti-racism laws and policies to remedy the harm caused by prior racist laws and policies.

University Distinguished Teaching Professor and Arthur L. Moller Chair in Bankruptcy Law and Practice.

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