Blog #71 – Fair Housing – Remedies and Solutions


Fair Housing – Remedies and Solutions

This Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies, and then some principles for real solutions.

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Turning to remedies and solutions, one way of looking at the reasons to be restrained in celebrating the Court’s decision and the new Affirmatively Furthering Fair Housing Regulation is to ask the question:

“If the Federal government itself were obligated by law to do everything within its legal power to affirmatively further fair housing, what would it be doing?”

There are some immediately available and known policies that could be of substantial help.

They are immediately practicable ideas that might be politically viable even today.

They include, just for instance:

  1. closing the loopholes in the new Affirmatively Furthering Fair Housing Regulation,
  2. requiring a fair housing impact statement analogous to an environmental impact statement for all actions affecting housing provision;
  3. a housing speculation provision in the income tax law denying capital gains treatment or imposing progressively steeper taxes on profits from speculation in land ;
  4. expansion of public housing, housing directly and permanently owned by government, with increased roles for tenant participation in management;
  5. a federal housing trust fund, available to provide subsidies for location actions necessary to prepare and implement fair housing plans;
  6. legislative endorsement of the various Declarations of Rights of the UN;
  7. model local legislation on building codes, affordability, zoning, tax policies, eviction policies, comprehensive planning;
  8. Specific financial and technical support for the preparation of comprehensive local master plans covering land use and the key sectors of public engagement,[1]

[1] The new AFFH Regulations already contain provisions for such assistance, but are focused on data provision and analysis, not a comprehensive planning process.

But these are remedies; they operate in a situation in which discrimination in housing is recognized as part of the existing landscape. To be effective, however, such actions need to be based on a recognition of the causes of that situation, and incorporate specific substantive prnciples so that they do not become simply empty paper-work bureaucratic requirements. The next Blog, E. suggests what such further action, looking to solutions rather than just remedies, might look like.

To be effective, however, such actions need to be based on specific substantive principles so that they do not become simply empty paper-work bureaucratic requirements.

At least ten concrete principles could address the six weaknesses of the present court decision and governmental regulations:

  1. Close the loopholes in the law and the regulations and the Supreme Court decision that leave open to undesired interpretation terms such as “adverse,” “disproportionate ,” “legitimate purpose,” “reasonable alternative,” “racial” and “ethnic,” etc. Perhaps a blanket provision stating the constitutional priority to be given to the goal of eliminating discrimination in housing might suffice.
  2. Recognize the unjust and discriminatory way in which the housing system as a whole now operates, face up to the limitations of the private market as the mechanism for determining land uses and more broadly the direction of urban development, as matters of fundamental public policy., limiting the perks of private property[2] standing in the way of the development of alternatives.

Apply the standard used in defining fair housing, and the consequent affirmative obligations of government, to the other major policy areas involved in urban life, acting in recognition of the intersectionality of housing, education, environmental quality, accessibility, aesthetics, economic development, health care, security, the administration of justice, campaign financing, electoral procedures, essentially all sectors that ought to be under public control in a democracy.

Plan comprehensively, re-examining and expanding on the tradition of master planning and the experience in making such planning participatory and democratic. Intersectionality might suggest separate “sections” interacting; the reality is that each “section” is from the beginning entwined with all others from the beginning, and they should be planned jointly, not separately.

Provide the funds to implement fair housing goals. If the major problem creating unfair housing is the inequality of wealth and income, we have the power at least to ameliorate its consequences by redistributing some of that wealth and income, and the tax code is can be a major way to do that. By taxing at the top, with a steeply progressive tax system perhaps in this case focusing on income and wealth created within the housing system and redistributing the proceeds, perhaps through a targeted federal Low Income Housing Trust, adequately funding programs such as public housing which permanently take housing out of the profit -driven housing market, could go vastly further than it has – perhaps from 3% of all housing to 30-70%, in spirit from the 1% to the 99%.

Use the tax code to attack directly the maldistribution within the housing sector at its source by confiscatory taxation of speculative profit in the buying and selling of land and interests in land, monopoly profits from the ownership and management of housing, steeply progressive real property taxation of megahomes and ultra-luxury apartments.

Power must be explicitly taken into consideration. Given the obvious pre-existing inequalities in wealth and political, only exacerbated by the Communities United decision, any remedy for local governmental action must deal with the relations of power of the various groups involved, and minorities will generally , in the large picture , be near the bottom of the totem pole. If the undiluted warm welcome given the new Regulation is to be earned, the actions of the Federal government under the provisions of the FHA must deal with the distribution of power. It must be clear that the Federal government is indeed interfering in local matters, is indeed imposing standards of conduct meeting national priorities and national values. Indeed local input is vital, and necessary for effective implementation, but Federal rules must govern. Choices among decisions not contradicting the intent of the Federal law should indeed be left as fully local as reasonably possible, but it is entirely consistent with the distribution of powers among branches of government in the Constitution that issue of national concern, such as the full implementation of the 14th and 15th Amendments, be in the hands of the Federal government.

Recognize and welcome as positive the dominant role of the Federal government in setting the guidelines   for how housing should be produced, financed, managed, located, and distributed, and enforce those guidelines aggressively. Local discretion (but not autonomy.) is desirable within the framework of national if not global principles, e.g. an enforceable Declaration of Human Rights in Housing.[3]

Spell out, in theory and as implementable guides to practice, what values are intended to be covered by the general concepts of “fair”. Concepts such as justice, democracy, equity, diversity, growth, and sustainability are clearly involved, but their meaning and applicability to action public actions needs to be publicly debated and become ever present considerations in public and private actions.[4]

  1. Require social justice impact statement of all public actions affecting housing and land use, learning from the environmental movement the possibilities of having such statements, as well as an awareness of their limitations with enforcement measures behind them

These nine actions could virtually constitute an agenda for future fair housing and civil rights activity.

Such actions are recognizably not on the immediate political agenda of any social movement, political party, or advocacy group. They sound very theoretical and very idealistic, whether that term is used pejoratively or literally.

But these are actually radical proposals, if their implications are thought through. They call into question fundamental assumptions and values taken for granted in capitalist society, such as the sacrosanct rights of private property, the importance of growth, especially measured in economic terms, as a priority for governmental action, the profit motive as the most effective vehicle for securing efficiency in production and service provision, , the desirability of the market as a mechanism for the allocation of housing or any of the necessities of civilized life, the meaning of equality in the satisfaction of needs.

In Andre Gorz’s phrase, there are reformist reforms and non-reformist reforms. These are reformist reforms; the six concrete principles suggested before them tend towards non-reformist reforms. Even more radical reforms, such as public ownership of all land, income based on need, work based on ability, government based on direct democracy, while perhaps still theoretically attractive, are hardly imaginable in countries such as the United States today.

Making the transition from principles to practice, from reforms to non-reformist reforms , is a major challenge to those critical of the status quo, and goes beyond the discussion here. But one simple suggestion might be useful. The difference between the two is essentially that reform still leave much more to be done; no-reformist reforms are more comprehensive, seek to address the roots of our problems, not just the branches – although those branches are what immediately hurts, and must be addressed before the roots can be gotten at. Making this point, and make it continually and emphatically, is perhaps a way of opening a door to the consideration of more, of non-reformist reforms   whose need is made apparent by the limitations of the reformist.

Some reforms lend themselves to opening the door more than others:[5] a speculative property tax on land begs the question of why profit should be made on the sale of land to begin with, zoning issues implicitly raise the question of the priority of exchange over use values, social welfare programs lead to the question of what standard of living we after all want to have everyone be able to have. How far this can be done in any given situation is a question of strategy; its desirability seems to me apparent.

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This Blog is part of a set of five:

[Blog #68 – Evaluation of Recent Developments, examined the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

Blog #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, took up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both.

Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to both the legacy of slavery and to the present actors behind discrimination, and then the structural context in which they operate.

Blog #72 – Beyond Fair Housing: Some Elusive Principles for Societal Change, will raise some questions about elusive general principles for societal change.]

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[1] The new AFFH Regulations already contain provisions for such assistance, but are focused on data provision and analysis, not a comprehensive planning process.

[2] Michel Sorkin’s striking phrase.

[3] Article 25 of the Universal Declaration of Human Rights could be the beginning of such a process. For a comprehensive survey, see: United Nations Housing rights legislation, Review of international and national legal instruments, publications in support of the Global Campaign for Secure Tenure No. 05. Human Settlements Programme (UN-HABITAT) Office of the High Commissioner for Human Rights (OHCHR) Nairobi, 2002 available at http://www.ohchr.org/Documents/Publications/HousingRightsen.pdf

[4] Susan Fainstein’s The Just City and David Harvey’s Social Justice and the City are current major steps in this direction. See also Peter Marcuse, James Connolly, Johannes Novy, Ingrid Olivo, Cuz Potter, Justin Steil, eds. 2009. Searching for the Just City: Debates in Urban Theory and Practice. Oxford: Routledge.

[5] Nancy Fraser has termed such reforms “transformative,” and I have used that term also from time to time. Susan Fainstein, in the opening chapter to her The Just City, has an insightful general discussion of a similar approach.

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