INTRODUCTION
As gentrification becomes the central idea behind American urbanism, its contradictions raise what can be, but rarely are considered, problems of fair housing. Gentrification—understood as the heavily capitalized economic and often racial transformation of working-class, underdeveloped neighborhoods1—is now a popular expectation for at least medium-sized cities. We ask whether gentrification has reached a particular neighborhood. We want to know how far along it has gotten. Our questions reflect how interested we are in the new amenities, social sorting, and perceived market openings that come with a very particular form of urban transformation. Our questions also reflect our subjectivity. Popular perceptions of gentrification see it as a good thing—a revitalizing force that “brings people back to cities” and solves budget woes. Yet local vernacular perceptions often view gentrification anxiously through the lens of vulnerability, in which questions by indigenous residents revolve around a central concern: Where will I go if this place is colonized by the “creative class”? This subjective diversity shows gentrification’s exclusionary character, in which making things nice also means keeping people out. We have come to accept the reality of divergent perspectives and consequences. Facts about displacement have caught up with narratives.2 People really are priced out.3 Neighborhoods really do take on the more expensive costs and tastes of much wealthier housing consumers. Revitalization-as-gentrification, therefore, presents real contradictions. This reality should trigger a fair housing concern as, over time, the relationship between gentrification and housing affordability indirectly defines who gets to participate meaningfully in cities.
From the standpoint of city power,4 I argue that the spatial vulnerability that arises for some from market contradictions has to be understood as a central problem of fair housing in our time. The fair housing idea has always been concerned with the lack of housing choice for housing consumers disadvantaged by varied forms of discrimination targeting various kinds of people, usually by race. The concern is reflected in the two primary interests protected by the federal Fair Housing Act (FHA):5 the interest in racial non-discrimination and the interest in reducing racial segregation.6 These interests are sometimes connected in that the Act uses the language of non-discrimination as a means of overcoming racial segregation.7 State fair housing laws often follow these two explicit federal interests, sometimes asserting race over class or including other protected groups, but the schemes are generally consistent.8 If gentrification creates a distinct risk of residential exclusion and displacement that has a disparate impact on populations, the question is whether fair housing law can offer any kind of remedy. It should. What is needed is an understanding of fair housing that includes a third interest: housing stability. Therefore, this Essay explores how such a tripartite interest is asserted and its remedy accomplished, starting with an analysis of legislative purpose and ending with a proposal for implementation: a localized “affirmatively furthering fair housing” (AFFH) doctrine.
Creating a localized AFFH framework for housing policy and planning is a necessary act of progressive federalism. More pressing than the risk of displacement by gentrification is the risk of displacement by lack of affordability. Many more communities face the latter threat than the former—a fact that leads to confusion in distinguishing between the two. There simply is not enough of an incentive and/or political will to maintain or build an adequate supply of affordable housing in most job-rich parts of the country. Being rent burdened (i.e., paying more than a third of one’s household income on rent) is the norm in metropolitan America, and extreme rent burdens, where households spend more than fifty percent of their income on rent, are commonplace.9 Rather than consider this as an issue of access or economic justice, most cities treat the lack of affordability as an uncontrollable market dynamic (the goal of which might be actual gentrification). As a result, they do very little to retard exclusionary market effects. Often, they do the opposite. Most gentrification-based displacement is fueled by local governmental policies aimed at stimulating economic growth.10 Yet, federal policy offers scant hope. Federal fair housing participation is captive to the partisan philosophies of whoever the current president is. The current administration is opposed to fair housing.11 Thus, the responsibility for applying local constraints on displacement dynamics and ensuring greater housing stability for vulnerable housing consumers falls to state and local governments. Doing so is a form of equitable growth made possible, I argue, through an affirmative framework of localized fair housing.
Doing so is also a necessary function of local governance and therefore an important consideration in the development of progressive federalism. If exercise of the police power to protect the general welfare meant only promulgating rules to maximize a city’s tax base and ensure the welfare of only its wealthiest residents, then we would have no need for laws prohibiting discrimination and segregation. That has been the peculiar struggle of American suburbs, pitting police powers against notions of fair and inclusive housing. Gentrification focuses the issue on big (and medium) city policy. What the AFFH regulations require of cities seeking federal funds is to adopt formally or informally a housing-related plan for equitable living. The requirement recognizes that the structure of opportunity mirrors the structure of inequality; it is rooted in proximity to strong institutions and hindered by a lack of access to them. I will argue that this requirement should be co-extensive with the obligations of city power and that we do not actually need a federal system of incentives in order to do it. Cities should enact an urban AFFH framework because equitable access to the sources of opportunity within them is a democratic obligation embedded in municipal authority and the historic role of cities.
This Essay divides in two Parts. In Part I, I will situate the three fair housing interests in the familiar AFFH planning environment, offering arguments to shape context. The harder task is implementation. What constitutes the specific laws and policies that indicate a city’s commitment to fair housing? In Part II, I will draw upon some of the work that the center I direct at Rutgers Law School (the Center on Law, Inequality and Metropolitan Equity) has done in Newark, New Jersey, a working-class city experiencing an affordable housing crisis amid increasing economic development activity in the middle of one of the nation’s most expensive metro areas. Newark is poised for gentrification. That Part of the discussion will focus on distinct areas for reform that attach to the three fair housing interests—anti-discrimination, anti-segregation, and housing stability. Thinking of fair housing in a city like Newark as an example may be counter-intuitive. After all, it is an overwhelmingly African American and Latino city, while most fair housing issues rely upon a dominant white presence. Yet, this is precisely why the Newark focus is instructive. It shows that forces within and without our cities can significantly impact housing opportunity for vulnerable populations no matter what the immediate demographic make-up is. Thus, my proposed framework of local fair housing reforms includes a civil right to counsel, rent regulation, inclusionary zoning, and increased enforcement against discrimination in housing voucher use and mortgage foreclosure. These are not tools available to cities on the basis of race, but rather re-tooled devices for belatedly addressing the housing crisis that has long reflected place-based inequality in metropolitan America.
I. ANALYSIS: THE THREE INTERESTS PROTECTED BY FAIR HOUSING AND THE DUTY TO AFFH
A. The Rationale
The rationale for an urban AFFH duty rests on four basic assumptions about current housing that contribute to the urban contest over gentrification: the democratic significance of urban living, its high costs, its perceived opportunity value, and the primarily local determination of both. First, cities are supposed to represent that mutuality of interests. For generations, urban life has been seen as the anonymous intersection of human lives and opportunities, the messy being together of strangers. This is why cities are loved. Cities also represent the historical sites of difference—not only of lived multiculturalism, but of ghettoes, immigrant slums, and tenements—and the very places to which the excluded were confined. This is why cities are hated. Urbanists have to worry about these two defining aspects of American cities. Fair housing comprehends them both on behalf of our democratic ideals. The risk of displacement becomes even more critical when we consider that gentrification threatens either the idea of integration uniquely practiced in cities or the place of last resort for racially and economically marginalized people. Therefore, what happens in city neighborhoods says a lot about whether a society’s democratic and economic ideals can be realized.
Second, housing in most metropolitan areas simply costs more relative to income than it once did.12 In addition to stagnant wage growth, numerous factors have driven up housing costs in and around cities, including scarcity, land use and environmental regulation, the price of land, and the price of labor.13 With the lessening of federal assistance for affordable housing development—a process that began in the 1980s but, with the notable exception of low-income housing tax credits, has not been corrected by subsequent administrations14—developers have increasingly focused on high-end development (condos and rentals) where returns on investment are considered greatest.15 This has contributed to an affordability crisis for more than the poor.16 Homeownership is increasingly out of reach for many younger people and the normalization of excessive rent burdens noted in the Introduction is responsible for a kind of metropolitan sprawl, raising median rents farther from the city as people who cannot afford to live there seek better deals on its periphery.17
Third, housing is not only expensive, but also is consistently valuable from the basic standpoint of access to opportunities and quality of life. The attractiveness of cities—a factor in their housing expense—is not just about culture and walkability. Cities attract jobs.18 In many fields, the best employment opportunities remain in cities for both professional careers and contingent work. Add in access to more robust health care options, better public transportation and, yes, culture and entertainment, cities provide more of the experiences that people value in terms of work, health, getting around, and feeling connected to others. Global real estate investors know this, which sustains the growth in value of urban housing.19
Fourth, the primary determinants of both housing cost and housing value are local. The federal government may control interest rates or provide mortgage insurance through a variety of programs on which Americans rely, but San Francisco is a hotter real estate market than St. Louis primarily because of local decisions that have interacted with those larger national and international factors. The residential and commercial gentrification of downtown Brooklyn,20 to take another example, resulted from years of local governmental planning that included “up zoning,” the decision to offer specific subsidies and forego certain taxes, and other factors on which federal policy had no significant say.21 In fact, gentrification itself is a mostly local economic development strategy, the result of active22 and passive23 market-making policy moves initiated primarily by local government decision-makers on behalf of the private sector.24
Yet it is precisely because of these factors that the vast majority of Americans, especially those at greatest risk of being left out, might now look to the federal government to impose constraints on local government market-making in order to lower the costs and extend the benefits of housing opportunity in a more egalitarian way. Again, this is because local residential development policies have rarely, if ever, shown much initiative in pursuing the fair housing interest. When they have—such as 80/20 mixed-income development25 or rent control—they have often regretted the decision and cut back, or they have been preempted from maintaining such regulation by state legislatures.26 Instead, we look to the federal government for fair housing. Our look is not always returned. The agency in charge of fair housing enforcement, the Department of Housing and Urban Development (HUD), is either under political capture by a presidential administration that has simply chosen to ignore its congressionally-mandated role in fair housing regulation or it lacks the necessary regulatory tools to do the work. This is a structure issue that suggests a disconnect in 2019, though a solution was foreshadowed in 1968.
B. The Three Supporting Statutory Interests
The FHA began with two fairly explicit statutory interests—anti-discrimination and anti-segregation—and evolved in the AFFH regulations to indicate a third interest in housing stability. Thus, the first two are well known. The Act explicitly prohibits discrimination in the sale or rental of housing units and various housing-related transactions.27 Early on, the Act’s meager legislative history was read to include an interest in racial balance and integrated communities. Housing discrimination can frustrate this interest, both in discrete transactions and through broader policies. Hence, the two interests may interact: segregation is dependent upon discrimination, though the reverse is not always true. As of this writing, a series of early cases making this connection remain good law.28
Housing stability as a third interest recognized by the Act takes a more circuitous path, beginning with the historical origins of the FHA that are eerily similar to displacement by gentrification today. The FHA was born of tumult, passed immediately following the assassination of Martin Luther King, Jr. and the riots that followed. By 1968, African Americans had long experienced displacement, not only as a result of overt racial discrimination but also as a result of covertly discriminatory urban renewal and interstate highway redevelopment policies that uprooted whole communities and tightened housing markets. Black urban neighborhoods routinely bore the brunt of highway construction policies;29 urban renewal was dubbed “Negro Removal” in popular parlance because the racial burden fit a predictable pattern. Racially disparate displacement patterns that resulted from facially neutral redevelopment policies are no less impactful than later-occurring racial discrimination that limits where displaced residents could go. Yet this widespread housing instability caused by redevelopment policies’ disparate effects on Black residential areas was not recognized explicitly in the Act. Instead, such disparate impact has been the basis for litigation resting on a theory of discrimination and racial isolation.30
Yet housing is business, and local real estate markets are central to the entire national economy. There is no divorcing housing discrimination and segregation from their economic effects. So, too, is housing instability, because it is inextricably linked to issues of affordability. HUD’s 2015 AFFH regulation sets forth an argument for recognizing this third interest without referring explicitly to gentrification, though it does discuss housing “displacement” caused by “economic improvement”31 as well as displacement concerns with respect to community participation in consolidated plans.32 The agency’s discussion of legal authority for the rule begins by denying that Congress intended to limit the statute to prohibiting housing discrimination: “This is not only a mandate to refrain from discrimination but a mandate to take the type of actions that undo historic patterns of segregation and other types of discrimination and afford access to opportunity that has long been denied.”33 Courts have done the same.34 According to the Act, in a system of open or fair housing, proximity to opportunity—the institutional assets associated with life chances—matters.35 Under section 3608’s duty to affirmatively further fair housing, the interest in living near opportunity is central to living without the constraints of racial segregation and “related barriers for groups with characteristics protected by the Act, as often reflected in racially or ethnically concentrated areas of poverty.”36
The question is whether this interest in non-segregated, non-discriminatory residential areas of opportunity further implies something about stability of tenure. Specifically, does it imply an interest in affordability that would be frustrated by displacement from processes like gentrification? It is certainly implied. Fair housing is “open housing,” meaning there is some measure of “choice.” But it is not just any kind of choice; it is choice linked to a norm of opportunity arising from connections to a place. Therefore, housing choice is meant to connote access to opportunity. A lack of affordable housing in a local housing market absolutely constrains choice for lower income housing consumers. This limits their access to opportunity and contributes to concentrated poverty. If AFFH means to promote housing policies that allow people of all means to pursue housing close to opportunity, then housing policies that limit affordability and prevent people from living there violates this fair housing interest. In particular, actions by local governments that induce gentrification without controlling for displacement effects might be unlawful.37
Establishing the interest in housing stability under the FHA is not the same as establishing a basis for litigation under such a theory. A lawsuit alleging such a violation of the Act may also have to demonstrate racially segregative effects. Housing instability and a lack of affordability is the chief problem of gentrification, a process that also often (but not always) plays out in racial terms.38 Suffice it so say, if we had to do it all over again today, housing choice would be fair if it did not discriminate, did not segregate, and did not suffer from a lack of affordability and a high risk of displacement. That is what people in need of legal protection want today. And that is really the point of an urbanized AFFH—to do it all over again with the assistance of the federal AFFH framework but without the textual constraints of cramped language.
Beyond the existence of the AFFH interest in housing stability is the exercise of that interest in the federal regulatory scheme. For that, the AFFH framework relies on a regular comprehensive information gathering and evaluation exercise called the Assessment of Fair Housing (AFH).39 The periodic AFH requirement on federal funds recipients entails an even more thorough analysis of historical trends, demographic factors, litigation, and policy impacts on fair housing interests than its predecessor, the Analysis of Impediments (AI), did.40 Where the AI required some elucidation of goals to overcome impediments, the AFH requires greater specificity and progress reports.41 A recipient municipality, for instance, can no longer merely note the presence of segregated neighborhoods and claim to wish them undone. It must demonstrate affirmative steps toward doing so in order to comply with the Rule.42 Further, HUD makes a reciprocal promise. It will amp up its data tools for use by recipients in fulfilling their AFH obligations.43
This obligation is critical to a housing stability interest for at least two reasons. First, if you cannot “measure[] the invisible,”44 this at least demands that cities try. Methodologies on tracking displacement are challenging, but we are better at it than we used to be. Compelling studied attempts by cities can only help. Second, fair housing is fundamentally a community planning exercise. At its core are questions of how markets can be sustained, influenced, or modified at multiple points of entry across a specific housing landscape. If greater economic and racial balance is to be an outcome alongside greater housing stability, cities must have, and use, the tools to identify pressure points and make policy adjustments.
Supplanting the federal scheme with a local one has pros and cons. One con may be the absence of an obvious penalty for non-compliance. Unless an urban AFFH contains a private right of action, there is no match for the threat of withdrawn or reduced federal funding by not complying with HUD.45 Nor would non-compliance with a local ordinance serve the same deterrent effect on other cities and parties.
C. Trade-Offs in Going Local: Protected Class Limitations and Lack of Intersectionality
The pros to a local, instead of a federal, AFFH may seem obvious—more tailored and predictable results in local context, more efficient and timely compliance mechanisms, and, perhaps, less politicized discretion to enforce the law. However, an urbanized AFFH has the added advantage of correcting for salient issues with which the FHA struggles awkwardly—namely, the limitation to protected classes and the problem of taking intersectionality into account.
The FHA bars discrimination against people based on race, color, religion, sex, familial status, national origin, and “handicap.” For most of its history, the FHA has dwelled in the regions of race, sometimes using the construct as a proxy for class. Economic discrimination as a suspect basis would have opened up the Act to interest convergence among poorer whites and people of color. Not doing so (for reasons that seem jurisprudentially obvious) inadvertently meant that fair housing would forever be associated with Black people and, increasingly, brown people. In the notice and comment period prior to adopting the AFFH Rule, HUD was questioned about its statutory authority to extend coverage on the tacit basis of poverty.46 Its response reads like a summary of decades-long fights about proxy categories and the problem of affordability that currently grips most of the country’s metropolitan areas:
HUD would note that the majority of its programs are meant to assist low-income households to obtain decent, safe, and affordable housing and such actions entail an examination of income. . . . Accordingly, it is entirely consistent with the Fair Housing Act’s duty to affirmatively further fair housing to counteract past policies and decisions that account for today’s racially or ethnically concentrated areas of poverty or housing cost burdens and housing needs that are disproportionately high for certain groups of persons based on characteristics protected by the Fair Housing Act.47
This is a convoluted truth. HUD’s program assistance to low-income households is a direct result of the persistent effects of historic discrimination in housing and beyond, many of the federal government’s own doing.48 But it would be more powerful and direct if the FHA had even a source-of-income bar like many states and cities already have.49 An urban AFFH can end this limitation legislatively.
Another benefit of an urban AFFH is that its terms can be made available to an analysis of harms compounded by intersectionality. Intersectionality reflects the reality that harms for weak housing market participants often occur concentrically, where, for example, one’s gender contributes to vulnerabilities that are then compounded or exploited because of one’s race, source of income, and sexual orientation. In other words, the awkward term—intersectionality—elegantly sums up what really happens to many people in the world. Under the FHA, we make them choose an identity or two upon which to advance a theory of harm. When this dilemma was raised in comments to HUD, it responded by saying that, at least regarding data collection responsibilities under AFH, the rule contains the following: “Rule clarification. In section 5.154(d)(2), which pertains to the program participant’s analysis of data, HUD clarifies that such analysis pertains to ‘each protected class.’”50 Again, this awkwardness is the convolution of truths that newer policies, enshrined in new ordinances, can replace more clearly. This linguistic growth further represents what is “progressive” about progressive federalism.
In sum, I have argued that the groundwork for an urban fair housing policy rests on the FHA itself, which contains two explicit interests—anti-discrimination and anti-segregation—and a third—housing stability—that derives from them and is contained somewhat explicitly in the AFFH regulatory scheme. We do not know what will happen to the federal scheme. Knowing what it means, however, offers critical guidance to cities in their obligations to the general welfare. In fact, these three fair housing interests help us to understand a lot about the functions of cities and the uses of municipal power in general. If exercise of the police power to protect the general welfare meant only promulgating rules to maximize tax ratables and increase the wealth of the biggest resident consumer-voters, then we would have no need for laws to prohibit discrimination and segregation. Of course, this has been the fifty-year-old fight between fair housing and police power in American suburbs. Gentrification brings the issue squarely into the cross-hairs of big city policy. What the complex AFFH rules demand of cities seeking federal funds is little short of a housing-related plan for equitable living. The demand recognizes that the structure of opportunity mirrors the structure of inequality—that is, it is rooted in proximity to strong institutions and hindered by a lack of access. Since this demand should be co-extensive with the obligations of city power, it follows that we do not actually need a federal stick or carrot approach in order to do it. Cities should do this because equitable access to the sources of opportunity within them is a democratic obligation embedded in municipal authority and the historic role of cities.
II. PROPOSAL: AN URBAN AFFH REGIME WITH FOUR ILLUSTRATIVE REFORMS
But what would it actually look like to satisfy that democratic obligation under an urban AFFH regime? In short, it would entail several intersecting policy protections tailored to specific city characteristics but joined by a common fealty to the three FHA interests: non-discrimination, anti-segregation, and housing stability. It is worth noting here that not only do the three together constitute much of what we mean by “equity”; they also encompass common notions of inclusion.
This proposal for an urban or localized AFFH found expression in work my center has done on behalf of the city of Newark, New Jersey. The city’s mayor, Ras Baraka, sought recommendations on how to ensure that the benefits of nascent downtown development reached the most economically depressed of the outer ward neighborhoods and that any gentrification that occurred did not lead to displacement of current Newarkers. The request may be viewed as a fundamental question about how cities do equitable growth in the age of gentrification. Its remedy requires an affirmative approach to fair housing interests.
Our supporting research—available in a study called Making Newark Work for Newarkers51 and related issue briefs—showed that Newark, like most American cities, is facing an affordability crisis—in its case, acute and longstanding. However, unlike cities like New York or San Francisco, or even nearby Hoboken, its population is squarely working class and poor, with a median income of below $35,000.52 It lacks the wealth even of Detroit’s 7.2-mile inner ring of finance development. Foreclosures and real estate speculation have increased vacancy. The city has a substantial amount of subsidized housing (about twenty percent). Rare for many cities, it also has a substantial percentage of units that qualify under the city’s rent regulation law.53 Evictions are common. Homelessness is rising.54 Only a small percentage of its residents are middle class, though professional jobs in the city are held by commuters who live elsewhere. Newark employment for Newarkers is a significant problem, with less than one in five jobs held by a resident of the city.55
Rather than view these features in plus or minus terms, we saw this as simply what is.56 Our housing-based conclusions revolve around a policy of housing stability and non-displacement. They can be summarized as follows. First, the city needed to preserve, if not expand, its inventory of income-restricted housing. Newark, like most cities, lost significant amounts of public housing. Second, the rent control ordinance and operations must function at a very high level. Third, anti-eviction reforms are critical. Low-income tenants were especially vulnerable to court-ordered evictions because only landlords, and rarely tenants, were represented by counsel in court proceedings.57 Fourth, systemic anti-discrimination reforms had to be installed to prevent the kind of predatory lending that ravaged cities like Newark in the early 2000s.58 Finally, Newark had to encourage the kind of development the city wanted, rather than simply offer generous subsidies and redevelopment packages that fostered only high-end residential growth. Cities need business development in order to grow and sustain a substantial middle class. Unlike many cities that gentrified rapidly, however, economic growth had to follow an inclusive plan to ensure that the benefits of greater resources—tax base, schools, infrastructure, cultural amenities—redound to the benefit of all Newarkers, present and future. In other words, as our work showed, Newark has to become a model of affirmatively furthering fair housing policy with or without significant federal help.
But, that is Newark. Its lessons join other cities to provide a broader paradigm for equitable inclusion. For starters, the urban AFFH idea qua policy would be greater than the sum of its parts. For example, cities that adopt such a policy would have to incorporate its interests into zoning approvals for residential construction and theoretically could be challenged (depending on the legislative language) for failing to do so. The same can be said for decisions to offer subsidies to developers for projects that have the probable effect of increasing segregation in a given city neighborhood. In other words, the dual functions of cities to protect the general welfare of residents while revitalizing the economic operations of business would duel. However, this particular analysis focuses on the former while recognizing the importance of the latter. In order to offer a more concrete sense of reform, the remainder of this Essay illustrates four component housing reforms of a prospective urban AFFH program and describes some of the reasons these particular reforms are especially relevant to a broader program of equitable inclusion in a growing city. They are:
(A) Inclusionary Zoning;
(B) Civil right to counsel in landlord-tenant cases;
(C) Rent control; and
(D) Voucher discrimination and foreclosure prevention.
A. Inclusionary Zoning
Inclusionary zoning is broadly defined as zoning that conditions approvals for public funding and/or variances in exchange for a certain number of affordable units located either within a project or paid for off-site through a housing trust fund. This mixed-income development idea depends on its existence for growth.59 If developers are not building residential construction at a certain pace and magnitude, the ordinance sits dormant. During periods of growth, inclusionary zoning ordinances ensure that areas attractive to market-rate developers—often, but not only, gentrifying areas—will accommodate the housing needs of lower-income residents. Therefore, this reform targets the FHA interest in anti-segregation, though it may provide other benefits for inclusive growth. The ordinances vary greatly in conditions, requirements, and in lieu provisions.60
Even the most stringent inclusionary zoning ordinances probably do more to signal a city’s policy preference for economic inclusion than to substantially increase the supply of affordable housing or economically integrate neighborhoods. Newark’s ordinance was passed recently and is considered aggressive in making in lieu payments for off-site housing more difficult.61 However, it is worth noting that developers who pay a substantial price into a housing trust fund, rather than build on-site affordable units, may make feasible housing development in less costly areas of the city. When that is the case, cities have the opportunity to mature local developers, insist on minority labor and equity participation, work with educational and vocational anchors, enlist trade unions, and build both affordable housing and employment capacity for residents and struggling developers.
B. Civil Right to Counsel
The greatest single expression of housing instability is losing one’s home to eviction. Nationally, eviction rates have risen in part because landlords in gentrifying markets want to replace lower paying tenants with higher paying ones. Thus, rising rents may ultimately put pressure on tenants in areas where owners believe they can earn greater profits. Of course, there are other reasons people are evicted from their homes, including simple nonpayment of the rent obligation. Yet, research consistently shows a fault line in the system that enables eviction as a tool of displacement: it is legal one-sidedness. Tenants who go to landlord-tenant court without a lawyer almost always lose, and indigent tenants are almost never represented by counsel. The slow movement for a civil right to counsel in eviction proceedings62 recognizes this imbalance and offers the civil Gideon remedy that courts have already recognized in other civil proceedings63 where, like liberty, unrepresented litigants face the loss of “consequences of magnitude.”64
There are many challenges associated with a civil right to counsel.65 It is expensive, not only in paying counsel, but in the collateral effect on landlord-tenant courts where the vast majority of cases never go to trial. Represented tenants will be more apt to try cases. And by whom? New York City, the first jurisdiction to pass such a law,66 will rely primarily on its considerable infrastructure of Legal Services and Legal Aid Society housing lawyers in a geographic roll-out across the five boroughs. Yet a local government’s decision to put a right up for bid by providers of legal services may attract providers who lack the expertise in handling such cases, thereby undermining the right. And what role do courts play in the administration of such a right? Are they honest brokers of a reform that will greatly increase burdens on them, and how does a municipal executive and/or legislative branch cooperate with a judicial branch that may be county- or state-based in determining the best way to balance those added burdens? Finally, how is eligibility determined? New York City, for instance, will begin with free counsel to those defendants whose incomes fall within 200 percent of the poverty level (expected to expand to 500 percent in years to come) primarily because New York law requires mandatory care for the homeless. The cost of preventing evictions is predicted to offset greater costs of sheltering. Many states do not impose such costs on cities, which may affect eligibility rules.
C. Rent Control
Rent control or rent stabilization is one of the earliest expressions of regulatory localism to promote housing stability. Even more than inclusionary zoning, rent control has enjoyed a checkered history, with several states having banned it entirely. From an equity and affordability perspective, the strongest support for banning rent control comes from studies in mature real estate markets like New York City and San Francisco where, despite preventing displacement of rent control tenants, regulation has the effect of driving up non-controlled rents.67 Once again, a city like Newark offers a counter-weight. Almost half of residential units in the city are subject to an ordinance that mandates rent increases of no more than four percent per year,68 with other significant restrictions on increases even for rehabilitated but occupied units. For substantially (i.e., equal in cost to at least a year’s rent) rehabilitated vacant units, the ordinance permits only a maximum ten percent rent increase, thus discouraging evictions for the sake of higher rents to subsequent tenants.69 We found no evidence that rent control (or public housing) caused market rents to rise. However, the system is only as good as its organization, communications, and enforcement. Controlling rent is a substantial government function. The system’s beneficiaries are usually low- to moderate-income people, many of whom would have little leverage over owners on their own. They have to have relatively easy access to rules, the agency must be accessible to both tenants and landlords, and enforcement has to be regular and consistent. For these reasons, a city with a tax base limited by the low wages of its residents has the least resources to manage the greatest needs.
D. Voucher Denial and Foreclosure Prevention
The refusal of landlords to accept housing choice vouchers that pay a portion of the HUD-stated fair market rent of a low-income tenant’s rent is a common practice of housing discrimination70 and a significant contributor to segregated neighborhoods.71 A federal program deliberately designed for inclusion72 has morphed into a stamp of inferiority in many parts of the country where voucher holders are shunned. Although the FHA itself does not contain a prohibition on source of income, many states have passed such laws.73 Many gentrifying urban neighborhoods were de facto Section 8 zones where vouchers were traditionally accepted, if not sought, by landlords.74 Gentrification changes this willingness, and discrimination against voucher holders becomes one more exercise by owners hoping to profit from markets with rising rents.75 Tenants and prospective tenants can always sue under their state’s law, if the states have one, or, if the facts permit, on a theory of racially disparate impact under the FHA itself.76 As we have seen in the right to counsel discussion, however, tenants do not often sue to enforce legal rights because they cannot. The very lack of resources that makes them eligible for public housing subsidies cripples their capacity to become private attorneys general.
A city with a policy of AFFH need not wait for individual tenants to sue to prevent a practice in violation of its laws. Recognizing the imbalance of power and resources between owners and low-income tenants, cities can address these fair housing interests by creating an “Office of Housing Equity” (or Discrimination) whose primary function is to monitor rental practices, advise tenants directly, and pursue complaints.
The latter role suggests that the city itself has standing to vindicate housing discrimination within its borders, an assertion that is also behind preventing mortgage foreclosures. Complicated by the range of reasons that give rise to defaults, foreclosure crises have ravaged working-class cities like Newark’s in part because of the imbalance of resources between borrowers and lenders, but also because of discrimination.77 The need to finance the repair of an old roof often coincides with the difficulties of finding reputable lenders in particular city neighborhoods. During the housing boom that led to the Great Recession, predatory lenders targeted these zip codes.78 Balloon payments, variable interest rates, and other features of subprime loans were disproportionately made to moderate- and middle-income homeowners of color regardless of credit-worthiness.79 Newark’s foreclosure crisis dramatically eroded what little middle-class wealth the city had; it continues today.80 What we have found in working on these issues of discrimination and housing instability is a lack of public and privately accessible resources for borrowers with potential discrimination claims. I have recommended various potential actions the city could take, such as bringing claims under the FHA or engaging in reverse eminent domain to modify mortgages in default.81 However, these again are attractive but expensive and lengthy efforts that carry significant risks for cities. A more direct course would be to endow a newly created Office of Housing Equity (or Discrimination) with the expertise and capacity to keep effective records, conduct its own audits, and bring enforcement actions against unscrupulous lenders in a context of more equal power.
E. Enforcement: Carrots and Sticks in an Urban Garden
The last, but most important, element in an urban fair housing policy is—like all civil rights laws—enforcement. Section 3608’s command to “affirmatively [] further fair housing” has been in the Act for fifty years, mostly as a regulatory paper tiger. The attention it has gotten in recent years is in part a recognition of its untapped powers. Those powers come with enforcement threat. Under the 2015 Rule, HUD recipients, including municipalities, now risk a determination that their AFH is insufficient or their efforts incomplete.82 They could lose millions of dollars of federal funding that recipients often see as basic operating expenses. Without that threat, what deterrent power does an urban AFFH have to enforce its terms?
Any system of incentives associated with fair housing compliance has to begin by pulling back, as we have here, and seeing fair housing as an integral part of urban governance—although one with distinct principles of equity attached. I have argued that the displacement effects of widespread gentrification have reignited the need for cities to take into account housing stability as a third interest intrinsic to fair housing policy. However, gentrification arose as a neoliberal policy response to the very real fiscal threats faced by cities amid post-industrialization and the withdrawal of substantial federal support. One person’s gentrification is merely another person’s revitalization. This is the fundamental tension in enforcing an interest in housing stability upon an entrenched neoliberal approach to municipal finance that is based in significant part on real estate development. Cities need the growth that gentrification represents.
But cities might also get the growth they want. Development is conditioned on all kinds of rules, fees, and metrics. Therefore, the broad answer to the question of how cities enforce the policies I argue for here is two-fold. First, many of the provisions above already contain their own enforcement mechanisms. An Office of Housing Equity (or Discrimination) must be built upon certain inherent enforcement power. The same is true for rent control operations. A civil right to counsel is largely self-executing, as long as it is solvent and administratively efficient. Even reforms not discussed here, such as community planning boards as a specific step toward enhancing community participation in development decisions, contains a measure of enforcement by the terms of its existence. In other words, urban fair housing policy, if designed right, can embed enforcement mechanisms in its structure, rather than making it a separate thing.
Second, sometimes enforcement has to be a separate thing in order to be truly structural. That is, the overall policy itself must be accountable to the idea. The sum must be at least as good as its parts. How would we know? If measures of displacement showed that Newark, for instance, was losing lower income residents (or effectively barring new ones) despite making all the specific reforms I outline here, then we could not say that it had adequately protected the interest in housing stability—even if it could somehow show that discrimination was down and integration was up.
This sounds like an equality-of-outcomes problem, but it is really an issue of policy sustainability. Cities must remain places not only of jobs and economic growth, but also of racially and economically inclusive living arrangements, radical integration, and pluralist democracy. As the stratification of suburbs has shown and the disenfranchisement of both rural and exurban areas,83 there is no other place to do this. Therefore, this suggests three general principles of fair housing enforcement. First, opportunities must abound to reward good institutional behavior. Developers, landlords, non-profits, and city agencies whose work or policies demonstrably and affirmatively further the goals of fair housing should be regularly identified and rewarded with greater opportunities for growth. This sets new norms of excellence to which others may aspire. It may be publicized through an “equity score card” of sorts, as long as its administration is viewed as rigorous, independent, and objective.
Second, violators must risk business losses. The institutions that consistently underperform by undermining fair housing (e.g., by being successfully sued for discriminatory patterns and practices or the target of attorneys general investigations) must lose eligibility for subsidies, consideration for city-funded projects, and even face voiding of contracts with city agencies. Within the bounds of due process, their violative conduct should also be made public for scrutiny, transparency, and, most importantly, deterrence. Again, an urban fair housing policy must establish governing norms whose violations carry public consequences.
Third, states should get involved and condition funding on AFFH compliance. Progressive federalism, a norm-based version of regulatory localism, is the central power I advance in this Essay. Yet there is no question that these principles and their enforcement would be far more effective if exercised at the state rather than at the city level. Adopting this proposal as state law has the advantages of greater reach and uniformity while preempting evasion by exit to non-participating municipalities. State enforcement mechanisms tied to funding could be as significant as federal funding. However, statewide adoption also opens up the policy to a greater diversity of political interests, including non-urban opponents, where legislative compromises may render key provisions less effective. This is a hard tension to resolve in the abstract. Assuming a state would pass such a law—and I recognize that is no small assumption—the statehouse battles may be just the public reckoning with urban fair housing the country has needed for fifty years.
CONCLUSION
Though gentrification has been an issue in the redevelopment of American cities for at least thirty years, only now—in light of its effects on displacement, affordability, and wealth inequality—has it become a key feature of urbanism. Given what it says about inclusion, exclusion, and housing dynamics, gentrification also necessarily brings fair housing policy to the fore of urban governance and local government law. I have argued in this Essay that the 2015 AFFH Rule promulgated under the federal Fair Housing Act offers particular guidance for cities in considering such policy, even though the Act’s fiftieth anniversary also marks the low point in federal interest in its terms. Cities should recognize the framework as protecting three interests urgently relevant to equitable economic expansion: anti-discrimination, anti-segregation, and housing stability. Cities can adapt AFFH as an urban fair housing rubric by specifically implementing reforms such as inclusionary zoning, rent control, right to civil council, and voucher and foreclosure discrimination enforcement. This, I have argued, is a fundamental responsibility of municipal law, which, in an era of increasing experimentation with progressive federalism, must navigate the often contradictory demands of urban economic growth with that of pluralistic democracy.