The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances

Deborah N. Archer*

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues to play a profound role in creating and legitimizing patterns of racial segregation all across America. Crime-free housing ordinances are one of the most salient examples of the role law plays in producing and sustaining racial segregation today. They are, in this respect, a critical mechanism for effectuating the new housing segregation.

Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways. This is the first article to explain precisely how they do so. The Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. While scholars have examined the important role local laws played in effectuating racial inequality, they have not paid attention to crime-free housing ordinances. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a “segregative effects” claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact. While this intervention would not end the pervasive nature of housing segregation across the United States, it could eliminate at least one of the causes of this persistent problem: a body of law whose formal race neutrality has obscured its racially segregative effects.

*Associate Professor of Clinical Law and Co-Faculty Director, Center on Race, Ine- quality, and the Law, New York University School of Law. I thank Elise Boddie, Richard Buery, I. Bennett Capers, Devon Carbado, Andrea Dennis, Roger Fairfax, Rachel Goodman, Janai Nelson, Tony Thompson, and Erika Wilson for helpful suggestions and comments on earlier drafts. I also appreciate the helpful comments I received from workshop participants at the 2018 Lutie Lytle Writing Workshop at Southern Methodist University Dedman School of Law, the 2018 Clinical Law Review Writers’ Workshop at New York University School of Law, and the 2018 New York Clinical Theory Workshop. I am grateful to Nelson Castaño and Rashelle James for their excellent research assistance and to the wonderful editors of the Michigan Law Review. I gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund at New York University School of Law. In the interest of disclosure, I worked on the development of Jones v. City of Faribault, No. 18-cv-01643 (D. Minn. filed June 13, 2018), a case that influenced some of the discussion in this Article.

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