Introduction

American cities face persistent racial inequalities in housing as the result of decades of exclusionary and discriminatory housing policies. In face of this reality, communities are showing the energy and momentum to begin to rectify and remedy these past planning harms. However, the legal considerations involved in crafting policies to address racial disparities in housing are complex, evolving, and at times, unclear.

On April 28, the Housing Solutions Lab hosted a virtual panel discussion about the legal frameworks governing local efforts to address racial disparities in housing. Drawing from experiences in their respective cities and careers, the panelists shared insights on how cities can navigate existing legal frameworks, assess the risks of different approaches, and develop strategies tailored to their jurisdictions. While the panelists acknowledged the complexity and uncertainty of the current state of the law, they suggested several steps forward for cities seeking to address racial disparities in housing. In particular, the panelists agreed on the need for communities to study and understand their local housing disparities and histories of discrimination, as well as the importance of community engagement in developing viable and equitable policies. 

For decades, all levels of government and the private sector explicitly relied on race as an exclusionary mechanism in housing. In remedying the effects of this discrimination, however, local governments are constrained under the Equal Protection Clause of the Fourteenth Amendment, the Fair Housing Act, and state law in their abilities to use race as a factor in designing policies and programs to address racial disparities. The panel discussion began with a review of the Equal Protection and Fair Housing Act regimes, including an outline of the requirements of the “strict scrutiny” standard that policies that explicitly rely on racial classifications face in court.

Greg Maio, a senior attorney at ChangeLab Solutions who has worked with a variety of cities to begin to address housing disparities and discrimination, noted that “there is often a tension between the strong desire to take action, and the nuance with which we have to approach it. The goal of the government is to find the most direct and simplest solution to any problem, but this runs right afoul the narrowly tailored requirement under strict scrutiny.”

Olatunde C. Johnson, Jerome B. Sherman Professor of Law at Columbia, suggested that a critical first step for reparative action is an audit of a city’s own history and practices. Cities can start by looking at their histories with respect to exclusionary zoning mechanisms, racially restrictive covenants, denials of municipal services, failures to enforce housing laws, urban renewal, segregated siting and construction of public housing, or appraisal practices. The audit can help cities build their evidentiary base and establish an administrative record, which can serve to support future race-conscious policies. The process of conducting this research and sharing its findings with the public can also serve as a vehicle for community engagement and building common understandings of local racial disparities in housing. 

Additionally, Professor Johnson reminded the audience that there are many ways in which cities can advance racial equity without relying on racial classifications, and that “if the city does not rely on racial classification, as a general matter, this will not trigger strict scrutiny.” Learn more about strict scrutiny and the legal challenges policies that distinguish amongst groups for benefit or burden face.

Community engagement

Many cities also face various forms of preemption under state law that affect local policymaking. The panelists outlined strategies for developing equitable housing policies despite these legal barriers, with an emphasis on the role of community engagement. 

Tulsa, like many American cities, has a long history of prioritizing wealthy and white community voices while neglecting those of communities of color. Kristin Maun, the Director of Housing Development & Incentives at Tulsa Authority for Economic Opportunity (TAEO), spoke about Tulsa’s efforts to incorporate meaningful community engagement into the policymaking process.

“Historically, when you don’t incorporate the voices of the community, the solutions, the programs, and policies you adopt don’t meet their needs, it can just worsen the disparate impact. When we think about racial equity in housing in Tulsa, we approach it in what barriers residents are facing, what does the community want to see and then how we can bring our technical expertise to implement.”

For example, Oklahoma’s constitution prohibits affirmative action in public contracting based on race and sex, preventing Tulsa from creating programs that directly target housing developers, prospective homeowners, or tenants of color. Instead, policymakers have had to rely on race-neutral strategies for increasing equity both in the housing development industry and in access to housing. 

In 2021, local officials learned through community engagement that small BIPOC developers had difficulty accessing capital. In response, they used their affordable housing trust fund to design a low-barrier loan for affordable housing developers. After the launch of the loan application, further public engagement revealed that criteria in the loan program – including a preference for developers with more years of experience – disproportionately disadvantaged applicants of color. Because of this feedback, the city could then amend the loan application to give more equitable treatment to applicants of color.

Paths forward and local examples

How can cities address past planning harms and contemporary racial disparities while staying within the parameters of the Constitution and Fair Housing Act? Panelists highlighted several potential approaches, many of which cities across the country have already begun to explore. 

1. Audit your city’s history

• Understand the history of housing discrimination in your city, which may include zoning practices, racially restrictive covenants, denials of municipal services, unequal enforcement of laws, urban renewal, segregated siting and construction of public housing, and appraisal practices. 
• Developing a record of local discrimination can support future policies remedying past planning harms, and can help the whole community understand the lingering racial impacts of past practices
  • Louisville’s Equity Code Review identifies its own land use regulations that have inequitable impacts and builds the evidentiary base to argue for further reform.

2. Understand the range of available options and applicable legal frameworks

• Understand where strict scrutiny applies and what it requires.
  • Race-conscious policies–such as Evanston’s Local Reparations program–must advance a compelling government interest, using methods narrowly tailored to achieve that interest. Evanston’s Restorative Housing Program builds on years of research documenting housing discrimination against Black residents in Evanston, and targets relief to those residents and their descendants.
• Consider where race-neutral policies may be effective in addressing racial disparities.
  • N/NE Portland Neighborhood Housing Strategy is an example of an approach that relies on geographic rather than racial classifications in redressing housing discrimination. Portland residents whose property was taken by the city government through eminent domain, and their descendants, receive priority for housing opportunities in N/NE Portland.

3. Engage affected communities

• An inclusive community engagement strategy is necessary for an equitable housing strategy. Engaging affected communities can reveal perspectives, concerns, and recommendations that better meet a city’s housing needs. It can also build longer-term support for the housing strategy and strengthen the relationship between community groups and government to promote future engagement.

Tulsa’s Kirkpatrick Heights/Greenwood Master Plan features a community planning process to develop a framework for the redevelopment of 56 acres of publicly-owned property in North Tulsa. The study area, home to historically Black neighborhoods, has already experienced a significant decline in the Black population and its proximity to a growing Downtown Tulsa bring further fears of speculation and displacement. The voices, ideas, and concerns of local residents will directly inform the development of the master plan.