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Tuesday, September 08, 2015

The Future of Housing

In February 2015 I participated in a fascinating conference at Washburn University School of law called "The Future of Housing: Equity, Stability, and Sustainability."  The conference covered three distinct but interrelated problems that our system of housing must face and overcome in the near future. (Articles from that symposium can be found here).  Since participating in that February conference, nearly every day I am struck anew by how vital it is that we as a nation craft effective solutions to housing challenges.

First, we are facing a crisis of de facto housing segregation and inequity in this country. Today, fifty years after the creation of HUD and 47 years after the passage of the Fair Housing Act, housing discrimination and the effects of racially-determined disparate policies regarding homeownership continue to plague our society. Current housing patterns are as equally segregated as they were back in 1968 when the Fair Housing Act was passed.  The New York Times reported on Sunday that "[e]conomic isolation is actually growing worse across the county, as more and more minority families find themselves trapped in high-poverty neighborhoods without decent housing, schools or jobs, and with few avenues of escape." As the article explains, housing disparity in this country came about not by accident but by deliberate design among all sectors of the housing market, private lenders, private property sellers, and - most disturbingly - the federal government agencies tasked with growing homeownership for the nation. The Federal Housing Administration very much served as an "architect" of segregation in the 1930s and 40s, conditioning mortgage funding on neighborhood racial homogeneity (and - even then - granting funding almost exclusively to white homebuyers). These policies were also reflected in other housing initiatives that shaped the landscape of housing today - in particular the GI bill that significantly grew homeownership in this country, but only for whites. Efforts to combat housing inequities today are hamstrung by a cumbersome "disparate impact" jurisprudence (see Professor Rigel Oliveri's article here) and the reality that it is harder to un-do a nation's housing patterns built on segregation than it would have been not to have the segregation-creating policies to begin with.  At least this summer the Supreme Court refrained from further limiting the scope of the Fair Housing Act in the Inclusive Communities case, but that alone is unlikely to lead to housing parity.

In addition to the continuing need to address housing inequity, our country still must re-establish (or establish for the first time, depending on your perspective), a stable residential mortgage market.  In the aftermath of the 2008-to-present Financial Crisis sparked by the 2007 subprime mortgage meltdown, much has been written and said about allocation of blame. To date, however, we still have an incomplete picture of how to solve systemic financial instability going forward. Professor David Reiss has made a recent, insightful contribution to the stability question in his recent article, Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan, wherein he advocates that the Federal Housing Administration be preserved, but that its underwriting approach be significantly re-worked in order to create a more efficient and effective home finance system.

In addition to equity and stability issues, we must continue to bear in mind the challenge of housing sustainability. Volatile gas prices and disenchantment with suburbia (see here and here, for example) are now calling into question longstanding assumptions about zoning, neighborhood design, and community housing goals.  Automobile dependence, large-footprint houses, and suburban communities perhaps should become anachronisms as our housing policy modernizes and recognizes realities of sprawl, pollution, and suburban population de-connectedness (food for thought: see here and here).  

These challenges are not easily overcome. How can this country solve the problem of entrenched housing segregation patterns, particularly without problematic government mandate?  How can market volatility be eradicated when we continue to have financial institutions (both government sponsored and private) that today are not only "too big to fail," but are even BIGGER than ever before? And is it really possible to reconsider and possibly reverse patterns of development that are encouraged (or required) by legislation (from the local to the federal level) and enshrined in centuries of the common law? 

I leave you with these questions, in the hopes that together we can craft solutions and build a better future of housing.

I have so very much enjoyed this stint as a guest blogger at prawfsblawg. Thank you for this opportunity. And thanks to all of you who are working - in all the various important subject matter areas - toward positive developments for our law and our society.


Posted by Andrea Boyack on September 8, 2015 at 11:19 AM in Article Spotlight, Culture, Current Affairs, Property | Permalink


In this case, the well-known proverb applies: plus ça change, plus c’est la même chose.
See, for example:

• Bratt, Rachel G., Chester Hartman, and Ann Meyerson, eds. Critical Perspectives on Housing (Temple University Press, 1986).
• Gilderbloom, John I. and Richard P. Appelbaum. Rethinking Rental Housing (Temple University Press, 1987).
• Lamb, Charles M. Housing Segregation in Suburban America since 1960: Presidential and Judicial Politics (Cambridge University Press, 2005).
• Logan, John and Harvey L. Molotch. Urban Fortunes: The Political Economy of Place (University of California Press, 1987).
• Philpot, Thomas. The Slum and the Ghetto (Oxford University Press, 1978).
• Molotch, Harvey L. Managed Integration: Dilemmas of Doing Good in the City (University of California Press, 1972).
• Wienk, Ronald E., et al. Measuring Racial Discrimination in American Housing Markets. Washington, DC: U.S. Department of Housing and Urban Development, Office of Policy Development and Research, Division of Evaluation (Government Printing Office), 1979.
• Wilson, William Julius. The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (University of Chicago Press, 2nd ed., 2012 (1987)).

Of course there are far more titles that might be cited, but these should sufficiently illustrate how little, indeed, has changed since 1968 (one reason the word ‘crisis’ doesn’t do this situation justice). Incidentally, there’s a double issue of the magazine Jacobin, 15/16 (Fall 2014) with a wide variety of articles that might interest and inspire those curious about the unfulfilled emancipatory promise of urban space (and work) found in Left traditions in this country and abroad (an exemplary instance of an historical endeavor to realize this promise is found in ‘Red Vienna’ of the 1920s and early 1930s).

Posted by: Patrick S. O'Donnell | Sep 9, 2015 7:58:20 PM

Thanks for the post. Have you seen/heard the pitch that Richard Rothstein has been making recently? He's been arguing that "In any meaningful sense, neighborhoods . . . have been segregated de jure. The notion of de facto segregation is a myth, although widely accepted in a national consensus that wants to avoid confronting our racial history." It's interesting stuff: http://www.epi.org/publication/the-racial-achievement-gap-segregated-schools-and-segregated-neighborhoods-a-constitutional-insult/

Posted by: Matthew Bruckner | Sep 9, 2015 10:44:59 AM

Yes, these are interesting and troublesome issues. De facto segregation by race (whether by choice or tied to segregation by income) appears to still be prevalent throughout the United States. For evidence, look no further than the "Racial Dot Map" of the U.S. found online here: http://demographics.coopercenter.org/DotMap/index.html
(For best results, turn on "map labels" and zoom in on a community of interest to see just how racially segregated most large U.S. cities were in 2010.)

Posted by: Kelly | Sep 8, 2015 2:21:22 PM

Brad, I completely agree. I think we (our country) has been too single-mindedly focused on home OWNERSHIP rather than housing quality (rental quality/price, for example).

Posted by: Andrea Boyack | Sep 8, 2015 12:04:56 PM

Instead of doubling down on the very pathologies that caused the crash in the first place, viz. that it ought to be a major goal of governments, state and federal, to insure that as many people as possible own a home and that said home never fall in value (preferably that it raise in value faster than the rate of general inflation), why don't we consider learning from our mistakes and concluding that if anything government policy ought to oriented towards reducing the cost of housing. No one gets upset when the cost of computers or food or fuel fall (well, some get upset when those fall, but politicians generally side with consumers rather than self interested sellers).

Posted by: Brad | Sep 8, 2015 11:59:43 AM

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