4

THE THREE STATIONS OF FAIR HOUSING SPATIAL STRATEGY

Fair housing advocacy in the 1960s was driven by two realities. The first was the existence of exclusionary, white communities that relied on a combination of legal, political, and violent means to keep blacks and people of color from entering as residents. These were both neighborhoods within central cities that clung tightly to their “ethnic purity,” as President Jimmy Carter would famously call it in 1976, but also the “white noose” of suburbs that circled the central cities of American metropolitan areas. It was to these communities, closed to minority occupancy, that the open housing movement was chiefly oriented. But the other side of the exclusionary coin was the impoverished urban ghetto, and conditions within the ghetto also importantly drove fair housing and more generally civil rights activity during the 1960s. Conditions in the black ghetto and the maltreatment of blacks, manifest in the housing conditions within the ghetto, the lack of jobs, the inferior public services, white-on-black violence, and police-community relations, repeatedly animated black activism during the decade. From the first uprising in 1964 through the end of the decade, the ghetto was the central reality that framed civil rights and fair housing politics.

The urban uprisings of the mid-1960s were, in fact, one of the defining domestic political issues of the decade. An important aspect of the grievances felt by blacks at this time was the malign neglect of and active disinvestment within black neighborhoods, problems that were long-standing. As Stokely Carmichael and Charles Hamilton observed in Black Power, “the problems of Harlem in the 1960s are not much different from those of Harlem in 1920.”1 Thus, the quickly escalating scale of racial politics in the 1960s was not simply a response to contemporary conditions of the ghetto, but was also a release of resentment and indignation over decades of racial oppression, forced segregation, and abuse. The uprisings of the mid-1960s came to dominate politics at both the local and national levels, affecting the course of urban policy under three presidents, forcing programmatic experimentation in participatory methods of policy making and implementation, and accelerating the pace of civil rights legislative activity. The rebellions are even credited for hastening white flight from American cities and contributing to the breakup of the New Deal coalition between white working classes and nonwhite voters.2 As city after city burned in successive summers from 1964 through 1968, and as cities seemed to teeter on the edge of outright warfare between swaggering, largely white police forces and gun-carrying Black Panther Party members, the policy atmosphere was gripped by what Alexander von Hoffman calls “ghettophobia.”3

It was in this environment in early 1968 that Dr. Martin Luther King Jr. was assassinated in Memphis, triggering yet more rebellions, and in which Congress finally passed a fair housing law. The bill’s language focuses on describing the penalties for housing discrimination and the processes by which the law would be enforced. Rather quickly a consensus emerged that the law addressed two related but nevertheless distinct objectives: the elimination of housing discrimination so as to ensure equal access to housing, and support for integrated living patterns that would lead to the ultimate elimination of both the exclusionary white neighborhood and the isolated black ghetto.

Upon passage, the bill was used vigorously by fair housing advocates to attack private discrimination and to challenge the way in which public-sector housing programs were contributing to patterns of racial segregation. As fair housing activism evolved, advocates began to rely on an interpretation of the law that privileges the integration objective, maintaining that in cases where the pursuit of equal access to housing and the pursuit of integration are in conflict, the integration objective is paramount. This issue remains the basis of the unresolved tension between housing and fair housing advocates.

Title VIII of the 1968 Civil Rights Act

The Kerner Commission’s report, published in March 1968, prominently reviewed the question of whether ghetto revitalization (enrichment) or integration was the more promising avenue for redressing racial inequalities in American metropolitan areas. The pursuit of integration and the pursuit of ghetto revitalization, of course, mean the deployment of very different sets of policies. Urban renewal, the community action program, model cities, and the rest of the urban initiatives of the 1960s Great Society programs were aimed at ghetto revitalization and empowerment, although, of course, there is disagreement about the effectiveness and even the true intent of some of these programs. They were, however, targeted to central city communities and at least rationalized on the basis of their potential benefits for improving declining and deteriorated inner-city neighborhoods. Fair housing initiatives were a separate set of policies, and focused on (1) how the private real estate market worked, (2) managing the inflow and outflow of racially defined groups, and (3) the land-use controls used by local governments to influence housing market outcomes. The push to adopt fair housing legislation at the national level did not, therefore, activate the latent tension between integration and revitalization.

An Act of Ambiguity

Fair housing legislation was considered by Congress in 1966 and 1967. The resistance of conservative southern Democrats to any bill establishing equal rights in housing ultimately killed the effort in those years. Though Congress had enacted a raft of civil rights laws over the previous three years, no agreement could be reached on the issue of housing. Reintroduced in 1968, the bill was passed by the Senate shortly after the Kerner Commission issued its report on the urban riots of the previous years. Despite the Senate’s work, opposition in the House made 1968 seem no different from previous years with respect to the prospects for full passage of equal housing legislation.4 However, Dr. King’s assassination in Memphis, Tennessee, on April 4 and the subsequent rioting in cities across the country jolted the House into action. Within three weeks the 1968 Civil Rights Bill was passed by both chambers and signed into law. Title VIII of that bill constitutes what has come to be known as the Fair Housing Act.

The bill was passed in a hurry by a Congress whose greatest motivation was not so much to create landmark legislation related to housing rights as it was to respond to rioting and violence across the country. Most observers agree that passage required such extensive compromise on the part of the bill’s advocates that the resulting law was weak in a number of ways. In fact, advocates and Congress set about to amend the law very soon after its passage in an attempt to strengthen many of its provisions.5 In the end, these efforts took twenty years to bear fruit, resulting in a fairly comprehensive set of amendments in 1988 that expanded coverage of the law and also strengthened several implementation features.

The record of legislative debate on the bill is not extensive. In fact, there is little in the congressional debates that can be used in retrospect to divine the intent of Congress on several specific and important issues. This is important because the legislation itself is vague on several critical issues, including what the definition of “fair housing” is, what the explicit intent of Congress was in terms of the multiple objectives that might constitute fair housing, and on the exact nature of the government obligations related to fair housing in the implementation of its own programs of housing and urban development.6

Of greatest importance in terms of the ambiguities in Title VIII is the lack of certainty relating to what is precisely the mandate of fair housing. There is widespread agreement that the act has two overriding objectives: the elimination of discrimination in housing, and the achievement of integration.7 The exact nature of these two objectives and their relative importance, however, generate debate among scholars. Whether and how Congress conceptualized the goals of the Fair Housing Act are debatable. The only goal explicitly identified in the language of the bill is the equal access goal—that is, the elimination of discrimination. The goal of integration, in contrast, has been read into the act, repeatedly, by the courts.8 The act never explicitly specifies the broader social goals of ending segregation or even of promoting integration.

The text of the law and the congressional record bear out the contention that integration has been read into the act by the courts. The words “integration” and “segregation,” for example, never appear in Title VIII; nor is there any direct statement of policy or intent that suggests that by passing Title VIII Congress intended to achieve residential integration. In fact, Congress never explicitly addressed the distinction between the two goals. Jean Dubofsky’s insider account of the passage of Title VIII does not even mention the issue of discrimination versus integration.9 This is not to say that members of Congress did not mention both goals. Indeed, many integrationist fair housing advocates (and the courts) have made repeated references to statements during congressional debate by then-senator Walter Mondale of Minnesota, the floor leader for the bill on the Senate side, regarding the need for “truly integrated living environments.” Members of Congress acknowledged the twin objectives of equal access (nondiscrimination) and integration, but they never distinguished the two. Instead, lawmakers conflated them. It seems from the available evidence that it was assumed by Congress, as it had been by fair housing activists for years, that the end of discrimination would result in integrated living environments. This much can be gleaned from the congressional testimony. The bill itself, however, focuses on the elimination of discrimination. Thus, following Lake and Winslow, and Rubinowitz and Trosman, it is clear that the “best understanding of the statute is that it is aimed at reducing barriers” to equal access in housing and that integration was thought to be an outcome that would result from greater choice in the housing market.10

More indisputable is the fact that there is, as Lake and Winslow argue, “nothing in the statute [that] suggests that restrictions on choice are justified to achieve integration.”11 That is to say, in those cases where the two objectives are actually in conflict (e.g., where full housing choice for minorities might result in resegregation of an integrated community), there is nothing in the law or in the congressional debate to suggest that the integration objective is privileged over the equal access objective. This is critical because subsequent court rulings addressed this very issue, as did a raft of “integration maintenance” initiatives across the country.

Contemporary civil rights attorneys active in the fair housing movement, while maintaining that integration and nondiscrimination are the dual objectives of the act, go to great lengths to justify the importance, if not primacy, of the integration goal.12 Florence Roisman, for example, asserts that integration is the main objective of Title VIII. She notes that the “floor debates in the Senate in 1968 were very focused on allowing blacks to move to the suburbs.”13 She also quotes the secretary of HUD at the time, Robert Weaver, as saying, “our non-white citizens must feel free to find their homes both in our central cities and our suburbs if the enforced racial ghetto is to be eliminated.”14 The quote most widely used to support the notion that Congress was intentionally acting to integrate communities through Title VIII is the one Walter Mondale said during the debate over passage of Title VIII. Mondale argued that the “reach of the proposed law was to replace ghettos with truly integrated and balanced living patterns.”15

Remarks by Attorney General Ramsey Clark and Senator Charles Percy of Illinois are also enlisted in the effort to show that integration was the agreed-upon objective of the legislation.16 Furthermore, there is some evidence that the fair housing advocates of the time saw their efforts in terms of specific spatial outcomes—integration and desegregation. Political scientist Mara Sidney notes in her history of the floor debate that supporters of fair housing repeatedly emphasized that fair housing would enable members of the black middle class to escape the ghetto.17 Roisman also points to the subsequent actions of HUD secretary George Romney, whose major efforts in fair housing were to move toward integrating suburbs that had erected exclusionary barriers, as evidence that integration was the central objective of the act.

Still, there is ambiguity in the statute and in the congressional record. There is reason to believe that the ambiguity in Title VIII is purposeful, the result of legislators’ unwillingness to grapple with a difficult issue of defining exactly the boundaries of fair housing. The repeated failure of fair housing legislation in the years running up to April 1968 speaks to the controversial nature of the bill, and the quick passage in the days following King’s assassination points to the desire of Congress to minimize civil disorder. Indeed, the nature of the congressional debate preceding passage of the bill reflects a desire to avoid fundamental questions about integration and settlement patterns, not agreement on them. The absence of guidance in the statute itself likely reflects avoidance of these issues, not their resolution.

There is also some evidence that the law’s ambiguity was as much a failure of imagination as it was a failure of will. The congressional debate on the issue, as well as the stated objectives of the fair housing movement at the time, evince a somewhat careless conflating of two distinct objectives, ending discrimination on the one hand and promoting integration on the other. Most actors at the time simply assumed that ending discrimination and producing integration were one and the same, or that the former would lead inevitably to the latter.

Given the prominence of the black power challenge to integrationist ideals that was in full bloom at the time of the 1968 debate on the Fair Housing Act, congressional actors were surely aware of the enrichment/integration debate. Indeed, the Kerner Commission explicitly and prominently referenced these two different strategies for achieving racial justice. Mondale’s statement can be interpreted as support for the integration approach, possibly even a statement expressing preference for that approach. There is also evidence that Mondale was worried about the influence of the black separatist argument. He was very conscious of the signals being sent from white communities regarding fair housing, saying that if black America thinks that whites won’t end segregation, then black separatists will gain.18

Yet other evidence strongly contests the notion that integration was the primary goal of Congress when it created the Fair Housing Act. Lake and Winslow, for example, argue that antidiscrimination is clearly the focus of the bill; “the language of the statute itself, as well as statements made in the Senate debate, strongly suggest that the protection of equal access is the primary intent of the FHA.”19 Others have noted that Senator Mondale made additional statements about the bill that seem to contradict the notion that it was about anything other than enhancing choice on the part of disadvantaged populations. In reference to Title VIII, Mondale said, “Obviously [the act] is to be read in context with the entire bill, the objective being to eliminate discrimination in the sale or rental of housing.... Without doubt, it means to provide for what is provided in the bill. It means the elimination of discrimination in the sale or rental of housing. That is all it could possibly mean.”20 Mondale also said that “the basic purpose of this legislation is to permit people who have the ability to do so to buy any house offered to the public if they can afford to buy it.”21

The senator’s statements about integrated and balanced living patterns seem to express a belief that given the choice, blacks would overwhelmingly choose to integrate. Speaking about the impact of the law, Mondale also said, “There will... be the knowledge by Negroes that they are free—if they have the money and the desire, to move where they will” (emphasis added).22 How do we reconcile these statements by Mondale, some suggesting an explicit intent to integrate, others indicating that equal access is the goal of the law? The interpretation that fits these disparate statements is that the equal access and integration objectives were assumed to be one and the same—that equal access would, perforce, produce integration. Mondale’s statements suggest that he believed that the act would accomplish an extension of choice for African Americans and that that choice would lead to integrated living patterns. There is nothing in this record acknowledging that the two objectives might conflict, nor is there evidence one way or the other about the primacy of one of these goals over the other.

What Is It to “Affirmatively Further” Fair Housing?

Another issue on which the congressional record and the language of the bill itself provide little guidance is what the federal government’s obligations are in the operation of its own housing and urban development programs. Section 808(e)(5) of Title VIII requires the secretary of housing and urban development to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” the act. This has become known as the duty to affirmatively further fair housing (AFFH). Unfortunately, this is the only reference to this duty that exists in the legislation, and neither “affirmatively further” nor “fair housing” is defined in the statute. As Sidney notes, “Whereas the fair housing statute was quite detailed in its delineation of the enforcement process for remedying discrimination in the private sector, it offered no guidelines on how HUD was to incorporate fair housing into its own housing programs.”23

The original or even subsequent intent of Congress related to affirmatively furthering fair housing remains obscure because, despite the passage of more than fifty-five years since enactment, Congress has never moved to define the phrase.24 In 2015 the Obama administration issued a set of regulations aimed at clarifying the AFFH obligation. The regulations require local bodies to perform specific analyses related to the geographic location of assisted housing and patterns of racial/poverty segregation in local housing markets, but the regulations do not offer specific guidelines related to the implementation of assisted housing programs. The regulations do not resolve the issue related to the relative importance of equal access and integration in Title VIII. In fact, the words of HUD secretary Julian Castro made it clear that in the wake of the AFFH rule setting, the agency was not endorsing integration over community development: “I agree with folks who say that, just because these neighborhoods are distressed and they’re minority neighborhoods, that [doesn’t mean] we shouldn’t invest in them. We should invest in them. We shouldn’t forget about them. They do have value. And so we can’t just have a policy of trying to get people out. There are a lot of people who don’t want to move, and we have to improve their neighborhood, too.”25

Interpreting the Act

In the current debate about the relative place of community development and integration in the nation’s housing policy, two things must be established. First, regardless of whether Congress intended or even recognized two distinct objectives of fair housing—antidiscrimination and integration—is there evidence in the bill or the legislative record that integration is the privileged objective? Second, does the law or the congressional record suggest in any way that Congress envisioned or sanctioned the imposition of burdens upon disadvantaged groups in order to serve integration objectives? The answer to both of these questions, it must be concluded, is in the negative.

As to these questions, I have already argued that the language of the act itself is unambiguously focused on eliminating discrimination in the private housing market and on describing the penalties and procedures adhering to such discrimination. The integration goal is entirely unspecified in the act. Nor can reference to legislative intent sustain the integration-first argument. What the record shows is a mix of statements, some referencing choice as the major intent of the bill, some highlighting equal access, others mentioning integration and solving the problems of the ghetto. What the record lacks is a definitive statement that privileges integration over equal access, or evidence that Congress envisioned the sacrifice of choice for individual members of minority groups in order to serve integrationist goals.

Into the breach created by this ambiguity the courts have stepped. In a series of rulings since passage of Title VIII, the courts have offered their interpretation of the law, frequently weighing in on the issue of the relative importance of equal access versus integration. On the government’s AFFH duty, the courts have exercised greatest discretion in interpretation. Over the years, courts have referenced AFFH to direct the federal government to restrict subsidized housing in predominantly minority neighborhoods and to redirect Low Income Housing Tax Credit funds away from central cities and to suburban areas, and, in one legal case frequently referenced by fair housers (Otero v. NYCHA), explicitly privileging integration over equal access. Here, too, fair housing advocates argue that the record supports aggressive integrationist strategies. Florence Roisman, while acknowledging the statute’s silence on the issue of segregation and integration, nonetheless suggests that the Supreme Court of the United States recognizes the spatial goals of the law.26 Such an interpretation undergirds a spatial strategy of fair housing that focuses on integration and desegregation.

Since passage of Title VIII, the fair housing movement has developed its spatial strategies in increments that are ever more aggressive. Its proponents point to judicial sanction of such strategies legitimized in Traficante v. Metropolitan Life Insurance Co. (1972) in which the U.S. Supreme Court ruled that Title VIII defined fair housing harms as not only the direct suffering from discrimination, but also the suffering of community members, white and nonwhite, who are deprived of integrated housing environments. Roisman and others argue that this decision establishes integration as one of the chief objectives of the act. This interpretation is further supported by the opinion in NAACP Boston Chapter v. HUD (1987), in which the First Circuit Court explicitly held that the Fair Housing Act went beyond merely directing HUD to not discriminate in the operation of its programs, but ruling that it must take active steps to further integration.27 Other judicial rulings have interpreted the law in important ways, generally with the effect of elevating the goal of integration as national policy in ways that the law itself did not.28

The Three Stations

I have argued thus far that the opening up of exclusionary communities was the way in which the fair housing movement first conceptualized itself. In practice that meant eliminating public and private acts of discrimination that were maintaining the racial lines in America’s urban centers. Phrased in this way, as it most frequently was by fair housing activists, the objective of the movement entails two dimensions. The first is equal access to housing, and this has no inherent spatial implications. The elimination of discrimination in housing is a universal objective, to be pursued in segregated or integrated environments. The second dimension of the fair housing mission is explicitly spatial. That is, “open housing” referred to breaking down patterns of segregation that limited people of color to racially defined neighborhoods. In this formulation, the strategies of the fair housing movement were to explicitly facilitate a spatial reorganization of races and ethnic groups to achieve more integrated living environments.

Opening Up Exclusionary Communities

The spatial strategies of fair housing as they have evolved have reflected three general goals. The first station of fair housing’s spatial strategy is to break down the barriers of white exclusion. This objective is aimed at removing the obstacles for people of color in moving out of the ghetto and into predominantly white communities. As there is little conflict between fair housing and community development on this strategy, we do not dwell long here.

In the first decade after passage of the Fair Housing Act, the bulk of nationally noted legal suits focusing on housing involved the issue of exclusionary zoning or land use control.29 In practice, this meant challenging the land-use regulations of suburban communities that limited the amount of affordable housing that could be built within their jurisdictions. In fact, however, litigation challenging the exclusionary practices of suburban governments was pursued even prior to Title VIII. Much of the litigation surrounding suburban exclusionism took place at the state level and resulted in a string of legal victories that saw regulations for large lots struck down in some areas, and other zoning provisions such as minimum floor areas, building sizes, restrictions on number of bedrooms or number of apartments interpreted as exclusionary and invalidated.30 The federal courts have also contributed rulings that have struck down restrictions on low-cost housing construction in white neighborhoods, and prohibitions on multi-family housing.31

THE BRIEF ROMNEY INTERREGNUM

The Fair Housing Act was less than one year old when Richard Nixon was elected president and appointed George Romney to head the Department of Housing and Urban Development. Romney was a liberal Republican and governor of the state of Michigan who had been a public supporter of desegregation and, as Nixon noted in making the appointment, passionate about fixing the problems of inner cities.32

Romney identified most of the problems of central cities in the widening disparities between the largely white suburban communities and the increasingly disadvantaged urban core disproportionately inhabited by blacks. Romney acted quickly and assertively in attempting to bring federally subsidized housing to predominantly white suburban communities. Several initiatives were launched in a short period of time to penetrate these communities. One tool was Operation Breakthrough, begun in 1969, which incentivized the development of affordable, factory-built housing. The program resulted in exactly one suburban project.33 The Open Communities program was an attempt to use the leverage of federal funding to influence suburban governments to accept subsidized housing. The program conditioned HUD water, sewer, and other infrastructure grants on the acceptance of subsidized housing. The agency withheld funding from a handful of localities after they refused subsidized housing.34 When Romney moved to impose the same requirements on the Detroit suburb of Warren, Michigan, the vitriolic response of this working-class community ended not only the program, but also Romney’s tenure as secretary of HUD and, ultimately, the federal government’s affirmative efforts to force suburban communities to accept federally subsidized housing.35 As Bonastia reports, “In the wake of Warren, the White House instructed all federal agencies to hold off on pro-residential integration policies until the administration had settled on a uniform policy.”36 Months later the administration announced that it would not pursue “forced integration” and would discontinue the policy of withholding funding from communities that oppose subsidized housing. Nixon was quite explicit about the “new” policy, noting that “it is not the policy of this Government to use the power of the Federal Government or Federal funds in any other way, in ways not required by the law for forced integration of the suburbs. I believe that forced integration of the suburbs is not in the national interest.”37 Nixon was especially sensitive to appeasing a suburban constituency that was partially responsible for his election in the first place, and held the key to reelection hopes.38 The grand federal experiment in aggressively implementing an expansive view of fair housing by using the influence of federal funding lasted less than two years and produced next to nothing in actual desegregation for the nation’s urban areas.

The almost total retreat from efforts to spread the development of subsidized housing to suburban areas was especially remarkable given the political environment of the late 1960s. The Kerner Commission had noted the need for opening up exclusionary white communities; public opinion polls reflected a mix of support and acceptance of integrating suburbs that was unprecedented in the nation’s history; and a wide range of politicians were supportive of the effort, as were important business constituencies such as the National Association of Home Builders and suburban employers in search of an appropriate workforce for their expansion.

Leaders of the black community in many metro areas, however, saw HUD’s efforts to disperse subsidized housing in a different light. Michael Danielson notes that “blacks in cities across the nation bitterly protested the new federal emphasis in the early 1970s on locating subsidized housing outside lower-income black areas.”39 In part, this was due, he argues, to the fact that in the early 1970s, “most blacks and black leaders [did] not yet consider exclusionary zoning a gut issue. They do not feel it every day like they do job discrimination,” school segregation, and public facilities discrimination.40 On the one hand, part of the concern was that facilitating the flow of households and resources out of the central city would further impoverish those central cities. On the other hand, some argued that the main beneficiaries of expanded subsidized housing opportunities in the suburbs would be whites and that very few black families would be desegregated in this manner.41 Danielson suggests that black leaders felt that the question of the location of subsidized housing was a zero-sum game, and given “meager benefits... the principal effect of emphasizing the improvement of housing opportunities in suburbs would be to shift resources away from the inner city where most blacks live, where housing needs are the greatest, and where blacks, because of their strength in numbers,” have greater potential to influence public policy.42 There was also concern that dispersal had the potential to undermine political support for subsidized housing by activating a strong white resistance to HUD activity.43

This position was not universal. The National League of Cities and the U.S. Conference of Mayors strongly backed the idea of “fair share”—that all communities within a region provide affordable housing opportunities. The NAACP, furthermore, strongly opposed the position of those who criticized dispersal.44 Once again, within the black community the tradeoff was apparent: either critical needs within the community might be met, or progress in desegregation might be achieved, but there was little to no expectation that both could occur simultaneously.

REGIONAL FAIR SHARE

Not all the action was taking place at the federal level. Some metropolitan areas were taking the initiative on dispersing subsidized housing. The creation of regional fair share allocation plans in several metro areas opened up the possibility of meaningful dispersal of affordable housing. Specially constituted regional bodies had authority to review local proposals for federal infrastructure grants. This “A-95 review” power, named for the U.S. Office of Management and Budget circular that outlined this policy, invested in regional bodies the authority to review local applications for federal grants and to recommend them for eventual federal funding. More than a hundred federal aid programs and planning grants were covered by A-95.45 Although A-95 review was originally designed as an environmental review, a 1972 amendment expanded it to incorporate an examination of the civil rights implications of federally funded projects. This allowed these regional bodies to accomplish what HUD had backed away from in 1972, the conditioning of federal funds on progress made in regionalizing affordable housing. A-95 review was the basis for several regional fair share housing initiatives.

In the end, however, the regional approach never went far. Suburban resistance to regional bodies that wished to impose subsidized housing requirements was as strong as it had been to the federal government. The regional agencies had little political or institutional power of their own and, like the federal government, were unwilling or unable (or both) to challenge suburban voters on the issue of integrated housing and the widespread dispersal of subsidized housing.

USING TENANT-BASED SUBSIDIES TO OPEN UP THE SUBURBS

In 1974, Congress created a new housing subsidy tool that was seen as having potential to further disperse subsidized households. The Section 8 certificate, a housing subsidy that is attached to the household and not to a particular unit, was created by the Housing and Community Development Act of 1974. If getting suburbs or some city neighborhoods to accept “housing projects” was proving to be difficult, perhaps subsidized households could be better dispersed on an individual basis. Families holding the certificate would find a unit in the marketplace and then enter into a lease using the Section 8 certificate to pay a portion of the rent. In fact, the expectation of greater dispersal for tenant-based subsidies like the Section 8 certificate (now somewhat euphemistically called the housing choice voucher—HCV) has been borne out. Nationally, households receiving tenant-based subsidies are more dispersed than those in project-based subsidized housing.46 At the same time, the degree of dispersion achieved by tenant-based assistance has disappointed those who hoped it would be a vehicle of integration. From the outset, Section 8 did very little to achieve desegregation. Observing the program’s earliest years, Saltman concluded that “what has happened to housing allowances and subsidies for the poor has thus created the usual pattern of segregation.”47 This basic assessment of the program has not changed over the years. Analysts continue to document the fact that housing vouchers achieve only an incremental increase in dispersal compared to project-based assistance, but not enough to generate any real racial or class desegregation.48 These patterns are typically attributed to the constraints and rules by which the program operates. As a result, several attempts have been made to create special versions of tenant-based assistance that would facilitate greater dispersal than the basic program.

During the Carter administration, three pilot programs were initiated to achieve greater dispersal of tenants in the Section 8 and HCV programs. The Areawide Housing Opportunity Program was a voluntary program designed to encourage municipalities within metropolitan areas to collaborate in planning for low-income housing and to facilitate the regional mobility of voucher holders. The Regional Housing Mobility Program (RHMP) was created in 1979 to facilitate the “porting” of Section 8 certificates from one jurisdiction to another, in the hope that those who receive their subsidy from a housing authority in the central city would be able to use that subsidy in a suburban community. RHMP was succeeded by the Section 8 mobility demonstration program, which operated in a different manner to achieve the same dispersal outcomes. These programs were never scaled up to any appreciable degree, and their dispersal impacts were minimal.

Despite the limited success of these 1970s efforts to enhance the dispersal impacts of Section 8, the idea did not go away. Congress and HUD continued to tinker with the program to allow greater choice for tenants, assuming that greater choice would lead to integration. This led to the addition of vouchers to the original Section 8 certificates to allow families the ability to pay more in order to enhance choice. Congress increased the portability of Section 8 subsidies, first across city lines within the metropolitan area, then to the state and national level.49 Finally, voluntary “special mobility programs” were designed to facilitate relocation out of disadvantaged neighborhoods. As noted, the assumption behind increasing the portability options within the HCV program is that, given the chance, families would use the voucher to move from lower-opportunity areas to higher-opportunity communities. Program officials envisioned a movement out of central cities and into suburban areas, a pattern that does not always occur.50

Because this dimension of fair housing spatial strategy does not restrict choice for disadvantaged groups, nor does the implementation of this strategy place any burden on members of the disadvantaged groups, there is little conflict between fair housing goals and affordable housing goals in the pursuit of greater housing opportunities in exclusionary communities. The creation of an administrative apparatus for achieving greater affordability in suburban areas, such as a regional governance of fair share housing efforts, will have the effect of increasing housing choices for low-income people region-wide. It may allow disadvantaged groups to settle more widely if they so choose, although the greater income and racial diversity in suburban areas of the United States has largely occurred without the assistance of fair share housing. From the viewpoint of affordable housing activists, however, regional strategies to increase the availability of low-cost housing are important because they increase the supply of affordable housing, and there is demand for such housing in suburban areas.

Yet this first station of fair housing’s spatial strategy is not entirely without issue for those who put greater value on community development efforts. When resources are scarce and participants perceive of the spatial question as a zero-sum game (i.e., greater investment in suburban areas means reduced investment in the core), conflicts can occur. The notion of a zero-sum game is one that both sides of the debate accept.51 The potential for conflict exists in periods of scarcity when choices must be made about where to allocate meager resources. As shown in the response by some black leaders to HUD’s efforts to promote suburban subsidized housing, the perception of zero-sum tradeoffs can generate conflict between fair housers and affordable housing providers.

Preventing Further Segregation and Resegregation

The second station of fair housing spatial strategy consists of efforts to prevent further segregation or resegregation. These efforts are most clearly seen in rules that restrict the siting of subsidized housing and in various programs aimed at maintaining integration. The siting restrictions, or what are sometimes called impaction limits, have come about largely as the result of court decisions. In these decisions, various courts have ruled that individual projects sited in minority neighborhoods would have the effect of perpetuating segregation and so have upheld actions that have denied approval of such projects.

SITING GUIDELINES

Restrictions on the placement of subsidized housing are authorized by the “affirmatively furthering” requirement of Title VIII. The courts have interpreted that clause to mean that the U.S. Department of Housing and Urban Development must operate its programs in a way so as to achieve spatial goals in the allocation of assisted housing. The courts have interpreted that to mean that there must be a limit on the number of assisted units placed in segregated or “impacted” neighborhoods. Roisman points out that the concept behind impaction rules actually predates Title VIII by two years. The argument in Gautreaux v. CHA, filed in 1966, for example, called for guiding assisted housing according to the racial makeup of neighborhoods, limiting the development of subsidized units in neighborhoods where it is thought to reinforce segregation.52 Other efforts in New York and Michigan were also aimed at limiting the siting of assisted housing in ways that would reinforce patterns of racial segregation, prior to passage of Title VIII.53

Fair housing advocates continued to litigate on this issue after Title VIII was enacted, using the AFFH clause as their foundation. In 1970, plaintiffs in Shannon v. HUD sued HUD over a proposed housing development in Philadelphia. Interestingly, the original proposal called for homeownership units, and the lawsuit was filed only after HUD had approved a revision to the proposal that changed the housing from owner to rental.54 The plaintiffs argued that the rental housing would mean more minority residents in what had already been a minority area. The central finding in the case is that HUD did not have in place any process for judging the impact of a proposed development on the pattern of racial occupancy in the affected neighborhood and that this constituted a breach of the agency’s obligation to affirmatively further fair housing. The court directed HUD to create a policy and procedure for making siting decisions.

The Shannon decision is predominantly a procedural one. The court did not say that HUD must limit subsidized housing in minority neighborhoods, only that the agency must have a policy to review the racial impacts of its siting decisions. As Michael Vernarelli notes, “Although the court identified affirmative fair housing as an important goal of national housing policy, it recognized the existence of other important, competing goals: ‘There may be instances where a pressing case may be made for the rebuilding of a racial ghetto. We hold only that the agency’s judgment must be an informed one; one which weighs the alternatives.’ ”55

HUD responded by creating siting policies for its development programs in 1972 that generally limited development in minority neighborhoods unless comparable housing opportunities already existed outside those neighborhoods or the project in question met overriding housing needs that would not have been possible to meet otherwise.56 Those advocating community development regarded the siting guidelines as damaging to efforts to meet housing and rein-vestment needs of core neighborhoods. Black politicians and community activists feared that the dispersal of assisted housing would dilute black electoral power and ignored the preferences of people of color who wished to remain in core neighborhoods and needed housing assistance. When HUD applied their siting restrictions to a proposed project in Kansas City, and denied approval for a 280-unit project in an African American part of town, community leaders regarded it “as a slap in the face to local community development efforts.”57

These siting guidelines, while reflecting concerns about reinforcing segregation, were nevertheless criticized by many as a form of government-directed redlining that limited reinvestment in predominantly black neighborhoods. Given the unyielding opposition of whites to the placement of subsidized housing within their communities, both political activists and officials within HUD worried that the siting guidelines would reduce the overall amount of assisted housing that HUD would be able to produce.58 These worries echoed those of leaders in the black community during the 1940s and 1950s who feared a tradeoff between the quantity of needed housing and its location in predominantly white neighborhoods.

HUD policy and congressional input on this issue have followed something of a wandering path since Shannon was decided. In the first ten years after Shannon, HUD revised its siting guidelines twice, first to acknowledge rehabilitation and reinvestment needs in core neighborhoods and then again to introduce even greater flexibility in agency decision making. In 1978, HUD was criticized by the U.S. General Accounting Office for not doing enough to deconcentrate its assisted housing. HUD secretary Patricia Harris responded by arguing that the agency had multiple objectives and was simply balancing dispersal objectives with “equally important legislative goals such as neighborhood revitalization.”59 Just two years later Congress, urged on by members representing urban areas, moved to prohibit HUD from denying housing proposals based solely on the impaction limits and called for greater flexibility in siting decisions.60 Members were at that time worried about whether the guidelines were keeping affordable housing out of communities where it was greatly needed. “Congressmen representing urban areas strongly opposed HUD’s site selection criteria that resulted in housing going to areas that did not want it rather than to areas that needed it the most.”61 Though the amendment did not become law, HUD responded and softened its criteria the next year.

SITING RESTRICTIONS—GAUTREAUX

Few court decisions in the fair housing field have had the impact in either duration or scope of the decisions in the Gautreaux cases. In 1966 lawyers from the American Civil Liberties Union filed class action lawsuits against the Chicago Housing Authority (CHA) and the U.S. Department of Housing and Urban Development.62 Predating the 1968 Fair Housing Act, the two Gautreaux cases claimed that the way in which CHA and HUD operated the city’s public housing program violated Title VI of the 1964 Civil Rights Act as well as the equal protection clause of the Constitution. The case against the CHA was decided first with the presiding judge Richard B. Austin ruling that the agency had discriminated in selecting sites for public housing and in tenant selection in ways that perpetuated racial segregation in the city. The judge ordered the agency to build the next seven hundred units of public housing and three out of every four additional units outside minority neighborhoods. For the purposes of implementing this order the city was split into “limited” and “general” areas. The limited area included all census tracts with 30 percent or more African American residents, and all census tracts within a one-mile buffer zone. The general area was the rest of the city. The court’s order, which was essentially written by the plaintiff’s attorneys, put a binding limit on the number of public housing units that could be built in the limited area.63

If implemented, the court’s order would have resulted in a large, scattered-site public housing program and spread public housing to predominantly white neighborhoods in the city. The resistance of white neighborhoods to receiving public housing, however, was strong, and the will of the CHA to scatter the units was quite weak. The result was that CHA stopped building new public housing. In the five years following the order, no new units were built, and only a handful were constructed after that. In 1987, Judge Austin appointed a receiver, the Habitat Company, to take over CHA’s development program and carry out the intent of the court’s remedy.

After the case against the CHA was decided in 1969, the judge took up the case against HUD. Interestingly, Austin at first dismissed the case, invoking a variant of the conundrum dealt with in this book. He argued that “HUD had to continue funding the discriminatory program or deprive low-income families of much-needed housing.”64 Appeals took the case all the way to the U.S. Supreme Court, which decided in 1976 that HUD was responsible for supporting a metropolitan-wide program to remedy the segregation that the agency had allowed through its continued funding of the CHA.

By this time, of course, the Fair Housing Act had been passed (in 1968), requiring the agency to affirmatively further fair housing, and the 1974 Housing and Community Development Act had created the Section 8 program that gave HUD a new way of providing housing subsidies to low-income families. The remedy for this case was a metropolitan-wide mobility program that provided Section 8 certificates to Chicago public housing families to move to predominantly white neighborhoods in the city or suburbs. The same general area / limited area distinction used in the CHA case was used to guide the relocation of families in the mobility program. The Gautreaux mobility program was voluntary; public housing families had to sign up to participate in the program and had to meet program criteria before being enrolled.

The scattered-site program that resulted from the CHA lawsuit operates as a form of siting restriction for HUD-assisted housing in Chicago. Although initially applied only to public housing, the Section 8 new construction program was also brought under the same geographic restrictions of the court order in the 1970s, as were HOPE VI funds in the 1990s. In each case, the use of these federal housing subsidies in black neighborhoods was strictly limited and made contingent on the development of HUD-assisted housing in the predominantly white, “general” areas of the city.

These restrictions were objected to almost immediately by leaders of the black community in Chicago. In Andrea Gill’s cogent and comprehensive analysis of the debate in Chicago generated by Gautreaux she documents the extensive objections of black community leaders to the restrictions imposed by the court.65 The court orders in both Gautreaux cases offered integration as the remedy to CHA’s discriminatory actions. The CHA case was decided in 1969, just as calls for self-determination and community development were dominating local politics in cities across the nation. As Gill notes, the Nation of Islam, the Black Panther Party, and PUSH were all strong presences in Chicago, as were local community organizations stressing black community development. She writes: “Before the ink had dried on the order [in the CHA case], other activists mounted a challenge to [lead Gautreaux attorney Alexander] Polikoff’s integrationist approach, which flattened racial justice to a process of relocating poor African-Americans.”66

Opponents of the order included the Chicago chapter of the national civil rights organization the Southern Christian Leadership Council. The opponents objected to the difficulties that the order would impose upon efforts to revitalize black neighborhoods in the city. Gill quotes the Reverend A. I. Dunlap, director of the United Coalition for Community Action, as arguing that the effect of the order is “to force us out toward the suburbs, and Black people don’t welcome that any more than White people welcome us coming.”67

The issue broadened when federal Section 8 new construction funds were brought within the purview of the court’s order in 1975. Within three years “PUSH, the local NAACP chapter, and the Chicago Urban League [had] formed a task force to modify the [court] order to exempt all developments in areas expected to undergo racial transition and to permit the use of rent certificates in subsidized developments built before 1969.”68

Illinois congresswoman Cardiss Collins called a congressional hearing in her West Side district to examine the effect of the Gautreaux court order on housing production in Chicago. A major concern aired at the hearings was the continued decline in the housing stock in the “limited” areas of the city (census tracts with more than 30 percent African American population) because of arson and private-sector disinvestment. Collins began the hearing by noting that “much of the blame for the inadequacy of Chicago’s housing stock in these devastated neighborhoods has been placed on the Gautreaux decision.”69 The court order made reinvestment in the housing stock there contingent on subsidized housing development in white areas. The continued resistance of white communities to such housing left the black neighborhoods without it as well. Collins noted that “residents in these areas are in a Catch-22 situation. They find themselves in critical need of new housing... and yet, they cannot get new units until communities outside their neighborhoods agree to accept Section 8 funding.”70 Real estate agent Ronald Laurent was even more direct: “The Gautreaux decision as handed down is directly responsible for the lack of decent and affordable housing in the City of Chicago. It has prevented the construction of new units in black areas with few or rare exceptions.” He likened the order to a kind of inverted restrictive covenant.71 Congresswoman Collins pointed out that Gautreaux is “preventing those who wish to remain in their present neighborhoods from enjoying better housing.”72

Gautreaux attorney Polikoff also spoke at the hearing, pointing out that the court order “does not prohibit new construction of subsidized and assisted housing in minority neighborhoods.” He argued that such construction can occur, provided that units are first built in white neighborhoods. “The problem,” continued Polikoff, “is that there has been virtually no construction of subsidized and assisted housing in white neighborhoods of the city.”73 Though others agreed that the housing was not getting built in white neighborhoods, they saw the problem as being that better housing in their own neighborhoods was being “held hostage” to the willingness of whites to accept it in their communities.74

In 1981 the Gautreaux order was modified to allow HUD-assisted housing in “revitalizing areas” of the city. This would allow subsidized housing to be placed in limited areas of the city that were in the process of changing economically and demographically. In neighborhoods such as these, which were becoming gentrified, the provision of subsidized housing would likely produce the integration that the fair housers sought. But Polikoff was not convinced and felt that the “acceptance of the revitalizing area concept was a reluctant concession to frustrated black developers, strongly backed by HUD.”75

A few years later, when the CHA began to think about rehabilitating some of its housing stock and introducing “mixed-income” approaches, the Gautreaux attorneys were there, ready to extend the reach of the siting restrictions to rehabilitation as well as to the new construction that was the target of the original court order. The logic of the Gautreaux attorneys was that such rehabilitation “amounted to rebuilding segregated high-rises in a black neighborhood.”76 Though the presiding judge in the case, now Marvin Aspen, did not extend the order as the plaintiffs desired, the reach of the Gautreaux siting restrictions was extended to the redevelopment of public housing that began in the 1990s.

SPECIAL MOBILITY PROGRAMS

The Gautreaux siting restrictions have proven to be of enduring importance, created in the 1970s but still affecting affordable housing development in Chicago forty years later. As important as this element of the Gautreaux decisions has been, the other aspect of the Gautreaux remedy, the mobility program, has arguably had greater national influence on questions of housing policy. The allocation of thousands of Section 8 vouchers to members of the Gautreaux plaintiff class, and the restrictions on the use of those vouchers to neighborhoods with a limited African American population, introduced an important new development in integrative housing policy—the Special Mobility Program (SMP). This type of program is important because it attempts to achieve greater dispersal and integration by confining the use of vouchers to neighborhoods that meet a program-defined level of acceptable integration. That is, it attempts to enhance the variety of neighborhood choices made by participants in the voucher program by limiting those choices to neighborhoods that will desegregate. This model was adopted in other desegregation lawsuits pursued by fair housing advocates in several metropolitan areas across the country, and it served as the basis of the national demonstration program, Moving to Opportunity, created by Congress in 1992.

SMPs have some generic characteristics. First, they are voluntary programs. Second, SMPs attempt to desegregate by restricting the neighborhoods in which the vouchers may be used. The Gautreaux program operated by restricting the use of the vouchers to neighborhoods that had fewer than 30 percent African Americans. Other lawsuit-based SMPs adopted a variant of that, either defining the acceptable neighborhoods in terms of race (i.e., specifying the maximum allowable percentage of people of color in program-eligible neighborhoods) or class (i.e., specifying the maximum allowable poverty rate in program-eligible neighborhoods) or both.77 SMPs also typically incorporate enhanced tenant counseling in order to assist families in finding and leasing units.

The treatment of choice in SMPs is complex. SMPs are, by definition, voluntary programs, so that all who participate have expressed the choice to do so. Once participants are admitted to the program, however, their choice is restricted in that the voucher subsidy may be used only in certain neighborhoods and not others. It should be noted that constraints on neighborhood choice are an inherent part of the voucher program in the sense that eligible units are typically concentrated in certain neighborhoods. This is the very factor that most analysts agree has limited the integrationist impact of the program. But the concentration of program-eligible units within certain neighborhoods can be regarded as a feature of the regional housing market. SMPs impose an additional limit on whatever market constraints exist by restricting families to renting in neighborhoods that meet the dispersal criteria. Special mobility programs are, of course, subject to the same zero-sum considerations as any other programmatic initiative. Resources devoted to SMPs might be used otherwise, and thus, although they are voluntary, they represent funding that privileges one spatial outcome over others.

INTEGRATION MAINTENANCE PROGRAMS

So-called integration maintenance programs are initiatives that are aimed at preserving racial diversity in communities where it does exist, and at keeping communities that have diversified from resegregating through a combination of white flight and the in-migration of people of color. Integration maintenance programs are usually undertaken by suburban communities to manage the racial composition of their populations to maintain a desired mix. Such management includes “discouraging additional black occupancy” in neighborhoods that have a preferred level of integration.78 The “preferred level” is typically just below the percentage of people of color that would induce white families to move out. In some cases, integration maintenance programs have included incentives for white families to remain in a community that is changing, or it can consist of attempts to attract white in-movers. In these instances the programs work by attempting to influence the residential choices of families. Whether it is by discouraging further black entry into neighborhoods or incentivizing whites to move in, sociologist Harvey Molotch characterizes these efforts as “competing for whites.”79 The normative standard for integrated neighborhoods is the white neighborhood, and integration means attracting a few, but not too many, people of color, while trying “to maintain a physical environment conducive to middle-class white residency.”80

One type of integration maintenance program, however, worked by more actively limiting housing access by people of color in order to limit their numbers within a community to a prescribed level. Again, the concern in these quota-based approaches was the imperative to avoid activating white fear and prejudice, and thus avoid white flight and complete racial turnover. By restricting housing opportunities for people of color to an approved percentage within a predominantly white community, these programs involved a form of purposeful discrimination in the service of integration when families of color were denied housing opportunities on the basis of their skin color. Quota-based integration management programs rather starkly revealed the potential conflict between the fair housing goals of choice and access on the one hand, and the achievement and maintenance of integration on the other. Such programs, as Wilson and Taub point out, “violate the letter of the 1968 Fair Housing Act by limiting the housing options of racial minorities.”81 They also violate many local housing ordinances, and thereby forced some communities to modify their nondiscrimination ordinances to allow such action.82

There are several notable features of integration maintenance schemes that work by means of such constraint and coercion. First, this constraint on equal access is acceptable, according to integration advocates, because it preserves larger patterns of integration that are good for “the community.”83 Thus, it places a purported community good in front of the good of individual people of color. This is a principle that was espoused forcefully in Otero v. NYCHA, as I point out below.

Second, the strategy works by requiring “the victims of past discrimination to carry the burden” of integration efforts.84 Its mechanism is coercive in that people of color are actively denied housing opportunities. This is in contrast to how integration maintenance programs treat white households. To the extent that white households are targeted by such programs, they are incentivized to either remain in a community or move to it. No coercion or limiting of choice is directed toward white families.

Third, integration maintenance programs ensure—actually mandate—black minorities within the residential communities in which such programs operate.85 Because these programs assume a “tipping point”—a level of black in-migration that will trigger white flight—they typically limit black residence to a small minority hypothesized to be acceptable to the majority of whites.

Finally, of course, quota-based programs have a discriminatory impact on families of color. That integration maintenance programs require constraints on the choice of individual families was readily acknowledged by those who advocated them. As such, these programs clearly placed the integration objective of fair housing before the equal access objective, a position that, as I have argued, is unsupported by either the text of Title VIII or the legislative record. The courts, furthermore, have ruled that such quotas are illegal, and thus this approach is no longer pursued by integrationists.86

OVERRIDING CHOICE: OTERO V. NEW YORK CITY HOUSING AUTHORITY

In Otero v. New York City Housing Authority, the court broadened its interpretation of the integration mandate of Title VIII.87 The case focuses on a planned redevelopment in the Seward Park Urban Renewal Area in New York’s Lower East Side. The New York City Housing Authority (NYCHA) had cleared land for a 360-unit public housing project and in the process displaced 1,852 low-income families. These families were promised priority standing for units in the new housing development. Demand for the new units among the displaced families, 60 percent of whom were people of color, was greater than NYCHA had anticipated. After 161 former residents were rehoused in the new development, the agency began to lease the remaining units to applicants who were not displacees. The agency did so out of fear that to honor its initial promise of rehousing original residents would be to resegregate the project. Almost 90 percent of the non-displacees on the waiting list were white. According to court documents filed by the plaintiffs, if NYCHA had fully honored its original commitment to displaced families, the new housing development would have become 80 percent people of color and 20 percent white.88 Had the original residents been allowed back to the site, the development would have been a predominantly minority enclave within a largely white neighborhood; 73 percent of the families in the larger area would be white.

If, on the other hand, the agency had its way and limited the rehousing of displacees, the project would have been 40 percent people of color and 60 percent white, and 82 percent of the families in the larger area would be white. The agency was motivated by concern that to allow the new development to be filled by former residents would trigger a tipping point that could produce racial turnover of the larger redevelopment area and resegregate it.

The plaintiffs sued, claiming that the agency’s new policy of maintaining an acceptable level of racial diversity on site had the effect of denying housing opportunities for people of color. The district court agreed, holding that the duty to foster and maintain racial integration “could not as a matter of law be given effect where to do so would be to deprive a non-white minority of low cost public housing that would otherwise be assigned to it.”89 Furthermore, the ruling noted the continued predominance of whites in the surrounding area and agreed with the plaintiff’s point that to allow former residents back to the site would, in fact, integrate the larger neighborhood more than if they were denied the housing.

NYCHA appealed the decision and won. The case was remanded for a trial, in which the defendants would be able to make the argument, if they could, that returning the original residents to the site would in fact lead to resegregation of the area. The appeals court held that NYCHA be allowed to demonstrate its “tipping point” argument. However, the case ultimately settled, so NYCHA was never actually forced to defend its predictions of tipping.

The appeals court decision in Otero reflects all the objectionable elements of integration maintenance programs described above. First, as many have pointed out, it creates a judicial rule based on the idea of tipping points. In this case, the tipping-point argument was an assertion that a predominance of people of color within the 362-unit development was not, in fact, an enclave that would integrate the larger white community, but a “pocket ghetto” that was likely to trigger white flight and a larger segregated community. Rubinowitz and Trosman note that tipping points can be thought of as an index of white racism.90 In Otero, the court allowed for that index to be used to guide housing policy. The decision in Otero not only ratifies the notion of tipping; it enshrines it as a guiding principle of housing allocation.91

Second, the logic of the appeals court ruling suggests that people of color must always be a small minority within a larger white community. The court essentially defines predominantly minority communities as problems to be avoided and defines healthy, desirable communities as ones in which the vast majority of residents are white. Indeed, by accepting and incorporating the “tipping point” idea to guide the allocation of assisted units, the Otero court indicates that what it means by integration is whatever degree of diversity whites will accept.

Third, the decision emphatically elevates the integration imperative of Title VIII above the equal access objective. It does so even though the court wrote, “It is true that the Act was designed primarily to prohibit discrimination in the sale, rental, financing, or brokerage of private housing and to provide federal enforcement procedures for remedying such discrimination” (emphasis added).92 The court makes reference to Senator Mondale’s statement that the Fair Housing Act “was designed to replace the ghettos ‘by truly integrated and balanced living patterns.’ ”93 Otero honors the desire of people of color to move where they will only when that desire accords with the court’s sense of integration and only when that desire will not invoke a “tipping point” that will trigger white racist reaction. It specifically contravened the housing choice of low-income households of color who wished to return to the newly redeveloped site. In one of its most-repeated statements, the court wrote, “To allow housing officials to make decisions having the long range effect of increasing or maintaining racially segregated housing patterns merely because minority groups will gain an immediate benefit would render such persons willing, and perhaps unwitting, partners in the trend toward ghettoization of our urban centers.”94

Fourth, the court ratifies the pursuit of integration even when it imposes specific burdens on people of color. In Otero, NYCHA’s fear of tipping meant that families of color who were promised rehousing on site if they so desired were in fact denied it. As the court maintained, “The affirmative duty to consider the impact of publicly assisted housing programs on racial concentration and to act affirmatively to promote the policy of fair, integrated housing is not to be put aside whenever racial minorities are willing to accept segregated housing. The purpose of racial integration is to benefit the community as a whole, not just certain of its members.”95

As Lake and Winslow point out, the court’s position here assumes “the existence of widespread housing options for blacks,” a condition that does not hold in many metropolitan areas.96 Furthermore, the court is suggesting that the preferences of “certain of [the community’s] members” are simply to be sacrificed in favor of the preferences of others who desire integration. It is notable that the judges of the Second Circuit made this ruling in the context of the choices made by people of color. This is not a mandate that any judge or group of judges has ever been willing to make concerning whites. We still await the court ruling that so readily dictates to whites the housing choices they can and cannot make.

For all the aggressiveness and commitment to integration reflected in this decision, there is also an unreflective acceptance of white domination through both the concept of integration offered by the court—one that essentially defers to the tolerance level of whites—and in the willingness to impose dictates on people of color related to the legitimacy of the housing choices they can make. While Otero proclaims the cause of racial justice, it operates through mechanisms that accept and perpetuate racial oppression.

Since Otero, according to Relman et al., subsequent rulings have retreated from the blanket endorsement of integration over choice.97 Starret City ruled that a quota system in the service of integration violated nondiscrimination standards in the Fair Housing Act, thus limiting the application of Otero. In 1982, in Burney v. Housing Authority of Beaver Co., the court struck down an integration maintenance program because it limited housing opportunities for blacks.98 In U.S. v. Charlottesville Redevelopment and Housing Authority, the “court struck down... tenant assignment program as a violation of the FHA, concluding that the duty not to discriminate has priority over the duty to integrate.”99

Dismantling Existing Communities

The final station in the spatial strategies of the fair housing movement is in many ways the most aggressive and involves the purposeful dismantling of existing communities that integrationists find to be unacceptably segregated. This strategy is carried out through mandatory desegregation orders applied to individual public housing communities, and through federal housing programs that fund the demolition of public housing and the forced displacement of the very low-income residents, predominantly people of color.

This effort to desegregate public housing communities, consistent with so many integrationist initiatives, imposes burdens on people of color that do not apply to whites. The “disestablishment” of segregation is a concept that seems to apply exclusively to communities of color. In just over twenty years of trying, more than a quarter of a million units of public housing have been demolished or otherwise removed from service.100 As with restrictions on choice described above, efforts to disestablish segregated white communities have not proceeded with anything like the speed and efficiency shown in the efforts to desegregate public housing communities. This is so despite the evidence that whites are the most highly segregated racial group in American metropolitan areas.101

It is critical to an evaluation of these efforts that in most cases the original residents of the public housing communities redeveloped have not, in fact, been desegregated. The record of those forcibly displaced by public housing redevelopment shows that most are moved to other low-income, predominantly non-white neighborhoods.102 There is, in short, little evidence that these initiatives actually work in achieving desegregation or in deconcentrating poverty, another rationale widely used to justify demolition and dispersal.

PUBLIC HOUSING DESEGREGATION CASES

Since the early 1990s, fair housing advocates have favored efforts to demolish segregated public housing communities. The effort to take active steps to desegregate public housing stems from a 1984 initiative by then-secretary of HUD, Samuel Pierce. HUD called upon public housing authorities to relocate families and use vacancies to desegregate existing stocks of public housing. In the end, this mandate did not produce much in the way of results.103

Roisman describes the subsequent national strategy on the part of civil rights organizations to desegregate public housing communities.104 Law journal articles were written advancing theories of litigation, and training sessions to support such litigation were sponsored by nonprofit legal groups across the country. These efforts led to class-action lawsuits in Baltimore, Buffalo, Dallas, Minneapolis, Omaha, and Pittsburgh against local housing authorities and HUD for the ways in which operation of public housing programs had contributed to residential segregation. Upon taking office in 1993, President Bill Clinton moved to end the active opposition of the federal government to these cases and authorized settlement negotiations.

The settlements that were reached in a number of cities contain several common elements.105 First, most call for the demolition of public housing projects with a dramatic loss of such units on the site, and in most cases an absolute loss of assisted units overall. Second, subsidies are shifted into housing choice vouchers, portable subsidies that residents can use in the private housing market. The hope is that these tenant-based subsidies will result in a greater dispersal and deconcentration of assisted families. Third, public housing families are forcibly displaced from their communities.

Many will contest whether the displacement is “forced” or not, since the displacement is a consequence of a class action suit, and those relocated are members of the class of plaintiffs. But merely being a member of the class does not indicate agreement with the legal remedy negotiated by attorneys for the plaintiffs. Furthermore, the remedy in these public housing desegregation lawsuits differs from those in many class action suits in two important ways. First, in many other class action suits, the remedy does not impose what some in the class may see as a burden. The demolition of their public housing homes and their forced relocation to other neighborhoods certainly has the potential to be seen by some public housing residents as undesirable, even if many other residents pursue that very outcome. We have seen this in the many studies of public housing redevelopment around the country.106 Second, in other class action suits, if one is not interested in or not in agreement with the remedy made available, one is typically not forced to engage with it. In the public housing desegregation lawsuits in which projects are demolished and all residents are moved, members of the plaintiff class who may not agree with the remedy are nevertheless forced to participate in it. That some public housing residents subject to these settlements have felt this way has been documented.107

PUBLIC HOUSING DISMANTLING AND GAUTREAUX

In Chicago, public housing redevelopment has been greatly affected by the Gautreaux settlement. The settlement has limited the amount of public housing that has been rebuilt on the sites of former public housing developments. Even when the residents of the public housing have requested more public housing replacement units, the Gautreaux attorneys have worked to limit the number. William Wilen and Wendy Stasell of the National Center on Poverty Law have documented the ways in which the Gautreaux attorneys have repeatedly resisted rebuilding public housing units on sites where such housing has been torn down by the CHA. They describe the legal battles over redevelopment at three Chicago public housing sites that ring the downtown area—the Henry Horner Homes to the west, Cabrini-Green to the north, and the ABLA project on the south.

In 1991, residents of the Henry Horner Homes on the city’s near west side sued the Chicago Housing Authority, alleging that the agency was engaging in de facto demolition by allowing the development to deteriorate and allowing vacancies to go unfilled.108 At the time the lawsuit was filed, more than half the units at the Horner Homes were empty. Because Chicago had been chosen to host the 1996 Democratic National Convention, which was to take place at the brand new United Center, just blocks away from the Horner Homes, the city had an interest in fixing up the area. The area around the arena was already being upgraded.109 As Wilen and Stasell note, the CHA’s unwillingness to re-rent units that had been vacated, and its unwillingness to stem the physical decline of the project that resulted from so many vacancies, had the effect of pushing more and more residents out.110 The claim of de facto demolition held that the CHA was accomplishing the same thing as a physical demolition would have accomplished—it was taking public housing units out of service, but without having received approval from HUD as federal law required, and without having to provide one-for-one replacement of the units lost (required by federal law at that time). After two years of legal proceedings, the Horner residents and the CHA came to an agreement that would demolish two high-rises, rehabilitate three mid-rises, and provide for some new units of public housing. The objective for the Horner residents was to place enough public housing units on site so that every current resident who wished to remain on the site could be accommodated.111

The Horner site, however, was located in the “limited area” of the city as defined by the Gautreaux court order, and thus any development of public housing on the site required the approval of the court. As Gautreaux attorney Alexander Polikoff wrote in his memoir, Waiting for Gautreaux, “If we were going to recommend... approval for Horner we wanted a mixed-income development, not a mid-rise and low-rise version of concentrated poverty.”112 The Gautreaux attorneys vetoed the agreement between the Horner residents and the CHA and insisted on a mixed-income redevelopment in which the number of public housing units was limited. Negotiations began between the Gautreaux attorney and attorneys for the Horner residents who wanted the number of public housing units on site to reflect the choice of existing residents rather than a limit set by the Gautreaux counsel. Redevelopment of the site was held up for months as the parties negotiated a settlement. In the end, more units were added in order to simultaneously accommodate all the public housing residents who wished to return and create a mixed-income development on the site.

Similar scenarios played out in the Cabrini-Green and ABLA redevelopments. In both cases, the residents sued CHA in order to preserve as many public housing units as possible. And in both cases, the Gautreaux attorneys stepped in to limit the replacement of public housing units in order to avoid reconcentrations, regardless of the desires of the resident groups. Because the receiver had been given authority over all CHA development, the CHA could not enter into development agreements by itself. This put the Gautreaux attorneys and the receiver in the position of determining redevelopment strategies. The residents of Cabrini-Green realized that their desire to preserve as many public housing units as possible was not going to be approved by Gautreaux counsel. The residents asked the court to relieve them of the oversight of the Gautreaux order, alleging “that Gautreaux plaintiffs’ counsel did not adequately represent the interest of the Cabrini residents because his goal was to integrate public housing on a city basis, whereas the [residents] sought to ‘maximize the ability of current and former Cabrini-Green residents to remain in their neighborhood.’ ”113

The ABLA case proceeded in a similar fashion, with residents trying to influence the redevelopment process as much as possible to preserve public housing options, and the Gautreaux counsel advancing its own redevelopment plan calling for fewer public housing units. The extraordinary efforts on the part of the Gautreaux attorneys to shape the remedial efforts in these three cases have in each case pitted the attorneys’ vision of integration against the desire of the public housing residents to preserve as much public housing opportunity as possible in these three revitalizing areas.

In the meantime, the majority of displaced public housing residents in the city simply moved to other high-poverty, segregated neighborhoods.114 As Wilen and Stasell argue, “This type of fair housing is in actuality neither ‘fair’ nor ‘housing.’ ”115 It is not fair in the sense that the wishes of low-income public housing residents are disregarded in pursuit of a maximum degree of integration, an objective that is not often on the residents’ agenda. It is not “housing” in the sense that it rarely produces more affordable housing for lower-income families than existed previously. At best, the settlements may achieve one-for-one replacement, but typically the number of subsidized low-cost units is reduced.

HOPE VI PUBLIC HOUSING DISMANTLING

Passage of the federal HOPE VI program in 1992 (at that time called the Urban Redevelopment Demonstration program), initiated an era of public housing demolition and redevelopment all across the country. Research has shown that most of the residents displaced by such actions have simply moved to other high-poverty, racially segregated neighborhoods. If the desegregation of original residents is the objective of this effort, it has been an absolute and documented failure. Research has also shown that most of the residents displaced by this effort are African American. In fact, their representation as a percentage of those displaced by public housing redevelopment is disproportionate to their residence in public housing.116 The program originated in a complex policy environment that included emerging theories about how poor neighborhood conditions can affect the life chances and outcomes of residents, and the redevelopment opportunities provided by a reviving real estate market in America’s central cities. The program evolved into one of demolition and displacement over the same time period during which the public housing desegregation lawsuits were being settled. What these efforts have failed to produce, however, is widespread and significant benefits for the original residents of the public housing subjected to redevelopment.117

HOPE VI was not explicitly an outcome of fair housing advocacy, and thus the negative outcomes for low-income, black public housing residents should not be laid at the feet of the fair housing movement. It is nevertheless the case that at least one prominent fair housing attorney, lead Gautreaux attorney Polikoff, has endorsed the program, calling it the necessary “radical surgery” that highly distressed public housing communities need. Polikoff also acknowledges many of the failures of HOPE VI and argues for better relocation counseling and services for residents who, he notes, have all too often been mistreated in the process.118 Still, he writes, “even if efforts to improve relocation don’t succeed, society should continue to tear down its public housing high-rises.”119

Integrationists’ Paths of Least Resistance

As noted in chapter 1, fair housing advocates frequently criticize the development of affordable housing in disadvantaged neighborhoods as a “path of least resistance.” Such an argument suggests that affordable housing is placed in low-income neighborhoods because these neighborhoods lack the resources to effectively oppose such housing. Thus, developers and agencies go where they have a higher likelihood of success, and a reinforcing pattern of spatial concentration of subsidized units ensues. Ironically, the second and third stations of the fair housing spatial strategy outlined above also follow paths of least resistance. Integrationists who focus their strategy on stopping or reducing affordable housing development in disadvantaged neighborhoods capitalize on antipathies toward subsidized housing shared by policy makers and middle- and upper-income citizens. It is typically not difficult to enlist opposition to subsidized housing, especially with an argument that certain places have too much of it. Indeed, as I have pointed out elsewhere, the logic of opposition to affordable housing in the core actually provides a rationale for opposition in exclusionary areas. Defining subsidized housing as a community problem only reinforces the resistance of white middle- and upper-income communities.

Similarly, at the third station of fair housing spatial strategy, integrationists who pursue the demolition of public housing and the dispersal of low-income black communities also trade on these attitudes. Additionally, however, the third station of fair housing spatial strategy also activates the considerable self-interest of landowners, developers, and local officials who benefit from demolition of public housing and the economic and land-use transitions that follow.

Convincing some elected officials and property owners that they have received too much subsidized housing is not so difficult a task, especially compared to the difficulties involved in convincing other officials in exclusionary communities that they need to produce more of such housing. When fair housing integrationists add their voices to the array of interests already opposed to subsidized housing, they follow a path of least resistance. While they may succeed in convincing some officials and activists that their communities are being taken advantage of, these efforts do nothing to get housing built in exclusionary communities. What fair housing integrationists repeatedly fail to demonstrate is how shutting off subsidized housing in the core, or demolishing it, will necessarily reduce opposition to the production of subsidized housing in exclusionary communities.

Since the passage of the Fair Housing Act in 1968, the fair housing movement has mounted an increasingly aggressive spatial strategy to achieve integrationist goals. When fair housing integrationists moved to restrict affordable housing in certain communities, and moved to discourage or outright limit black occupancy in certain neighborhoods, they were asserting the primacy of integration over other housing goals such as equal access. The reluctance on the part of the courts, policy makers, and fair housing integrationists to burden the white community with the obligation of integration is a recurring theme in the decades since the passage of the Fair Housing Act.

Though federal government support for dispersal was halting at first, it has been the centerpiece of federal housing policy since the early 1990s. As integrationists have pushed their agenda, they have challenged a growing number of federal policy initiatives. Integrationists have mounted efforts to bring their agenda to the federal government’s sustainability initiatives and to efforts to coordinate housing and transportation policy. In fact, several policy advances since the turn of the century have thrust the fair housing / affordable housing conflict into the forefront. We look at these developments in the next chapter.