Abstract
Excerpted From: Lisa Lucile Owens, An Argument for Housing Reparations, 77 Maine Law Review 243 (June, 2025) (404 Footnotes) (Full Document)
In 2020, renewed calls for reparations addressing the continued inequality in housing ownership began to ricochet across the United States. Perhaps because of the concrete nature of property deprivation and the clear disparities which stem from it, housing-related reparations and reparations-oriented policy in the form of low- or no-interest rate mortgage loans, affordable housing, housing grants, and other housing access programs have often been the focus of the largely local initiatives to effect reparations. Even considering the high bar posed by strict scrutiny under the Fourteenth Amendment to the United States Constitution, housing reparations, which stand apart from other types of reparations in many ways, remain a promising avenue through which a form of reparations may yet be achieved.
Scholars have thoroughly established the case for reparations related to slavery and discrimination against Black Americans . “ Reparation” is broadly defined as “ the act of making amends, offering expiation, or giving satisfaction for a wrong or injury,” 4 and is a policy mechanism by which governments can make amends to specific groups whom they have harmed in the past. In a political and legal sense, however, the term implicates a higher order of redress: reparations are an obligation to be paid by the government when it impedes upon the Constitution and restricts “ life, liberty, or property, without due process” or violates its duty to guarantee the equal protection of the laws. Reparations are well understood as a remedy formed in corrective justice that addresses social, political, cultural, legal, and economic entrenchment of discrimination. There is an abundance of reparations legislation and subsequent litigation that has upheld the government’s ability to pay reparations, even when using race as a determinative characteristic. This Article describes the relative strengths of municipal housing reparations as compared to other types of reparations, and explores the practical feasibility and constitutional defensibility of such housing policies in light of emerging legal challenges.
Centuries of racially discriminatory practices in housing are a constitutional failure requiring systemic remedy. This Article ultimately advocates for reparatory housing policy that reflects the current state of equal protection challenges, harnessing a reparatory mindset 8 to make policy choices at each level of government. At the local level, reparatory housing policy can take many forms including cash transfers; more intensive, documented assessments of a town’s role in housing discrimination that feature specific assessments of damages that account for local factors; or programs designed with the complex harms of historical discrimination in mind. In addition to local programs, federal and state governments should also consider reparatory housing policies insofar as they may be feasibly accomplished under existing law.
The normative project of this Article is two-fold. First, this Article argues that housing reparations are a constitutionally viable and morally necessary response to racialized harm. Second, this Article advances the proposition that local and state governments have the obligation to design policies that advance equity and repair inequality. To understand these normative goals, the Article turns to contemporary calls for reparations that seek to translate this legal and moral imperative into actionable policy. Specifically, it focuses on discrimination and maltreatment impacting mostly Black Americans and their ancestors that stems from slavery , Jim Crow , and more recent implicit and explicit means of government-sanctioned exclusion. While these harms are racially specific, the call for redress is based on universal principles of justice and fairness grounded in respect for democratic processes and the long-recognized multivariate police powers of state and local governments. To the extent that repair requires a racial designation--either in honoring the sacred intentions of reparations or for evidentiary reasons--this Article argues that there is a constitutionally viable path forward.
Despite a strong foundation in principle, the actual implementation of reparatory policies remains uneven. The “ wins” of reparations are, thus far, too few and far between. However, reparations, when realized through democratic means and implemented by local governments, are a powerful expression of the rule of law. Undermining such efforts through overly rigid judicial decisions would further erode the legal and moral foundations of democratic governance. Reparations for past failures of government are also one way in which local and state governments can reclaim the role of promoting justice, while at the same time serving as a model of democratic accountability or as a counterweight to regressive legal trends.
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In perhaps the most broadly influential writing on reparations in recent years, Ta-Nehisi Coates describes the “ compounding debts” of racism and slavery as being linked to property disenfranchisement, discriminatory banking practices, and lack of legal protection. It is property and its relationship to red-lining and other discriminatory practices that Coates describes most vividly in terms of its impact on those living today. Property reparations must navigate equal protection considerations in order to create a viable pathway towards reparations under strict scrutiny. Nevertheless, property reparations may be more suited to this task than other types of reparations.
While reparations are often thought of as a direct transfer of cash, other programs such as restorative housing reparations policies address specific systemic injustices in terms of lost opportunities in generational wealth-building and neighborhood opportunity. There is ample scholarship on historical and contemporary racism both in practice and policy, and these reparatory policies seek to acknowledge these wrongs across a timeline of explicit race -based housing and property-related policies. The movement relies on a valuation of harm similar to that of tort but different in important ways, as well as a framework of political justice or atonement. Reparatory policy may follow such race -conscious frameworks as the housing reparations policies discussed here for several reasons, including symbolic significance, evidentiary clarity, or administrative feasibility. At the same time, a reparatory orientation in policy may embrace racially neutral language to accomplish reparatory goals, strategically crafting reparative outcomes while navigating legal constraints.
Even still, there are clear limitations, both practical and theoretical, to reparatory policy made at the local level. Programs may be overly exclusive-- marginalizing some of the most vulnerable--or limited by local budgets. Implementation may not account for a range of experiences, and programs might be overly pragmatic. Implementation of the programs may fail to account for a full range of affected experiences, or policies may prioritize administrative convenience or feasibility at the expense of deep structural change.
However, in this moment of constitutional uncertainty when the Supreme Court has already greatly narrowed the permissible use of race in public policy and political leaders openly undermine the rule of law, reparations remain a powerful act of resistance available to municipalities. Even as the paths available for reparations are curtailed, the moral and political urgency of repair still grows. Like other forms of reparations, housing reparations challenge deep-set power structures by both redistributing resources and rewriting entrenched narratives about the meaning and value of justice. As democratic norms are under siege, reparatory policy is an affirmation of the value of government accountability and a local exercise of democratic will.
Assistant Professor of Law at the University of Massachusetts School of Law. The Author holds a J.D. from Boston College Law School, an LL.M. from Boston University School of Law, and a Ph.D. in Sociology from Columbia University.
