Inclusion Imagined: Fair Housing as Metropolitan Equity

Abstract

The federal Fair Housing Act of 1968, the least successful of the civil rights acts, has disappointed because it is the statute most fundamentally concerned with structural inequality. Born of civil unrest and the stark disparities between black “ghettos” and white suburbs, the Act advanced an interest in access to opportunity tethered to geography. The Act imagined economic and democratic inclusion through the achievement of two complementary housing ideals: anti-discrimination and anti-segregation. Overcoming discrimination that denied protected classes residency in high-opportunity areas would produce integrated communities of more equal opportunity. The problem has been that discrimination has matured in less recognizable ways and segregation has calcified, leading to more concentrated poverty, re-segregation and widening economic inequality. This Article recasts this stubborn reality with a renewed approach to fair housing that is more comprehensive in its scope yet still true to the Act’s intent. In light of two important legal developments, the recent Supreme Court decision on disparate impact and the Department of Housing and Urban Development’s final rule on “affirmatively furthering fair housing”, the Article sets out new possibilities for inclusion while recognizing the role of privilege and alternative constructions of integration. Specifically, I argue that fair housing was always more than housing and was intended to cover the housing-related institutional practices that anchor housing opportunity itself. Empirical support for this proposition comes from interdisciplinary studies in “metropolitan equity,” a field of comparative spatial inquiry that emerged out of frustration with fair housing. The question is whether fair housing law and metropolitan equity study can be joined in a remedial framework. This requires reverse engineering structural inequality, which I do by developing a theory that underlies both frameworks. Finally, I put the merger to the test, hypothesizing three systemic lawsuits that demonstrate the prospective scope of the Act in transportation equity, property tax sharing and inter-district education.