Fair Housing and the Constitutionality of Governmental Measures Affecting Community Ethnicity

Abstract

t B.A., 1985, Dartmouth College; J.D. Candidate, 1989, University of Chicago. ' Statistics from the 1980 census for thirteen large American cities show blacks increasingly moving to the suburbs. Only in New York City did the flow of blacks to the suburbs decrease between 1960-1970 and 1970-1980. See Eugene Carlson, Blacks Increasingly Head to Suburbs, Wall Street J 29 (Oct 20, 1981). See also Gary A. Orfield, Albert Woolbright and Helene Kim, Neighborhood Change and Integration in Metropolitan Chicago (Report of the Leadership Council for Metropolitan Open Communities, July 1984); William P. O'Hare, Blacks on the Move: A Decade of Demographic Change (Joint Center for Political Studies, 1982); Harold M. Rose, Black Suburbanization: Access to Improved Quality of Life or Maintenance of the Status Quo? (Ballinger, 1976). 2 See generally Rodney A. Smolla, In Pursuit of Racial Utopias: Fair Housing, Quotas, and Goals in the 1980's, 58 S Cal L Rev 947 (1985); Rodney A. Smolla, Integration Maintenance: The Unconstitutionality of Benign Programs that Discourage Black Entry to Prevent White Flight, 1981 Duke L J 891, 898-901; Bruce S. Gelber, Race-Conscious Approaches to Ending Segregation in Housing: Some Pitfalls on the Road to Integration, 37 Rutgers L Rev 921, 935-39 (1985); John M. Goering, ed, Housing Desegregation and Federal Policy (Univ of N C, 1986); Bruce A. Ackerman, Integration for Subsidized Housing and the Question of Racial Occupancy Controls, 26 Stan L Rev 245, 249-251 (1974); Note, Benign Steering and Benign Quotas: The Validity of Race-Conscious Government Policies to Promote Residential Integration, 93 Harv L Rev 938, 939-940 (1980). 3I have chosen the acronym MACE over any collective, pejorative label so as to emphasize the merits of a particular program. To date, the labels ascribed to these programs have been largely a function of the authors' own perspectives. Thus, an opponent of all raceconscious programs has used the term integration maintenance, Smolla, 1981 Duke L J 891 (cited in note 2), while proponents of these programs have referred to them as affirmative marketing, Gelber, 37 Rutgers L Rev at 929 (cited in note 2) and benign steering, Note, 93 Harv L Rev at 957-58 (cited in note 2). 4 See United States v Starrett City Associates, 660 F Supp 668 (E D NY 1987), aff'd 840 F2d 1096 (2d Cir 1988), cert denied 55 USLW 3328 (Nov 8, 1988); Burney v Housing Authority of County of Beaver, 551 F Supp 746 (W D Pa 1982); Williamsburg Fair Housing Committee v New York City Housing Authority, 493 F Supp 1225 (S D NY 1980), aff'd and remanded without opinion, 647 F2d 163 (2d Cir 1981). See also Otero v New York City Housing Authority, 484 F2d 1122 (2d Cir 1973).