Blog Series Critical Race Theory in Housing and Land Ownership: Zoning Discrimination

This is the second part of a blogpost that I started discussing Critical Race Theory in Housing and Land Ownership. This post deals primarily with discriminatory zoning laws and practices that have contributed to segregated neighborhoods historically, many of which still exist today.

Zoning laws have historically been used to discriminate against African Americans and other racial minorities in this country. The rise in the number of zoning laws in the early twentieth century, in many cities resulted from attempts to codify segregation in housing between African Americans and other racial minorities and whites.[1] In addition, zoning discrimination also resulted in economic disparities, with one’s home being the most valuable piece of accumulating wealth. Even in the face of federal public programs after World War II, zoning laws that excluded African Americans and other minorities based on race, flourished. Moreover, segregationists also used violence to attempt to maintain segregation in housing as well.

Eventually, explicit discriminatory zoning laws were struck down by courts. In Buchanan v. Warley, the U.S. Supreme Court declared zoning laws that explicitly, prohibited the sale of property based on race, unconstitutional.[2] In addition, there have been state courts that have struck down some discriminatory zoning laws as well. Nevertheless, exclusionary zoning laws, even though they may have a discriminatory effect have been allowed to stand.[3] As indicated in a previous post, the Fair Housing Act of 1968 (FHA) is one of the most powerful legal tools that is still available to fight against discriminatory zoning laws. Accordingly, civil rights groups have been successful in some cases of striking down zoning ordinances enacted to maintain segregated neighborhoods.[4]

However, the more subtle yet sinister play at work in this area is that even zoning laws that on their face do not appear discriminatory can still have discriminatory effects toward African Americans and other racial minorities. For example, zoning laws that exclude less expensive single-family residences, or require more expensive single family housing, particularly in the suburbs, which are overwhelmingly white and wealthy, given the economic inequality that exists in this country has the effect of discriminating against African Americans and other racial and ethnic minorities. Furthermore, zoning laws that prohibit the building of multifamily housing, (i.e., apartments, duplexes, etc.), in favor of only single-family housing, which are more expensive, also capitalize, pun intended, on the wealth gap between races in this country. In addition, establishing minimum size standards for new homes, or changing the zoning use from residential to commercial, are other ways that zoning laws have preserved segregation in housing and land ownership in this country. These laws have essentially created a “work-around” the court decisions that have outlawed racially discriminatory housing laws, to maintain segregation and discrimination. Moreover, local politics, and homeowner associations have been used as tools to maintain these laws that have the appearance of neutrality, but upon closer review, perpetuate discrimination and ensure segregated neighborhoods today.

As indicated in a previous post, discriminatory zoning laws not only affect housing, but impact many areas of society including, wealth, health, employment, education, and quality of life. For instance, in many ways, more affluent housing and land ownership increases the likelihood of attending college and earning potential. In fact, given the growing effects of climate change, higher temperatures in lower socioeconomic neighborhoods primarily in urban areas can also affect physical and mental ability as well.[5] Furthermore, the disparity in housing prices and value for African Americans and other racial minorities, further widens the generational wealth gap with whites as housing and property is passed down to future generations.[6] Moreover, housing impacts access to healthcare, as the number of doctors and medical professionals is decreased in less affluent neighborhoods but more accessible in wealthier neighborhoods.[7] Zoning discrimination can even affect time that parents have with their children and family as well.[8] One of the most important effects of zoning laws is perhaps the quality of education or schools that children attend, which leads to their ability to advance in their career and life.[9]

Unfortunately, zoning discrimination is not merely a historical problem, but the legacy of discriminatory zoning laws continues to be experienced today. A large proportion of residential land today is dominated by single-family housing, due to laws that prohibit the building of multifamily housing on this land.[10] In fact the gap in homeownership between whites and African Americans and other racial minorities, is even wider today, than it was when zoning laws began to spread across the country.[11] In sum, the legacy of zoning discrimination particularly in cities and suburbs has significantly contributed to the perpetuation of social and economic disparities in this country. As a result, housing and zoning discrimination remains and should remain on the agenda of civil rights activists.[12]

However, there are some states, New Jersey, Massachusetts, Maryland and California, that have taken novel approaches to remedy the discriminatory effects of zoning laws, by adopting inclusionary rather than exclusionary zoning laws.[13] In addition, there are many other viable solutions that can reverse the effects of discriminatory zoning. One option includes even providing financial incentives for developers to build higher quality and higher value housing in lower income neighborhoods, that are zoned for lower value housing.[14] Other options include executive actions, such as efforts by the U. S. Department of Housing and Urban Development, (HUD) to condition the receipt of federal funding on the elimination of discriminatory zoning laws. Previous administrations have used this tool, including the Obama Administration, and even the Nixon Administration, under former HUD Secretary George Romney, until former President Nixon ended the program.[15]

Meanwhile other options may require congressional legislation, which ironically, the Biden-Harris Administration has proposed and that is currently being considered by Congress. For instance, the American Jobs Act includes competitive grants to encourage cities to eliminate exclusionary zoning, as well as grants to provide technical assistance and planning support for this effort. The Biden-Harris Administration has also proposed grants that would create incentives for jurisdictions to remove barriers to affordable housing for low-income residents.[16] Still other solutions may be found in the courts. For instance, as indicated above, one legal vehicle, that remains a powerful option available to combat discriminatory zoning, is the FHA, which was a tremendous testament to Dr. Martin Luther King, Jr., and was passed the same year he was assassinated. Under the FHA, plaintiffs can prevail by showing that the law had a discriminatory effect, even if they cannot show specific intent to discriminate. Moreover, civil rights organizations, other parties, and even the Biden-Harris Justice Department itself can bring litigation against jurisdictions engaging in discriminatory zoning laws and practices.[17]

Thus, as always, there is more work to do in this area for activists, attorneys, social entrepreneurs, and anyone concerned about civil rights, to truly bring remedy housing and zoning discrimination. Achieving greater civil rights victories in this area will help to remove many of the economic and social disparities among faced by African Americans and other racial minorities that have existed for many years and continue to exist today, so that we can create a brighter future tomorrow.

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Until next week continue in your activism…

Brian K. Leonard, President, Civil Rights University

[1] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. [2] Day, William, R. Buchanan v. Warley, 245 U.S. 60, 245 U.S. 60 (U.S. Supreme Court 1917). [3] Sutherland, George. Euclid v. Ambler Realty, 272 U.S. 365 (U.S Supreme Court 1926). [4] Demsas, Jerusalem. “America’s Racist Housing Rules Really Can Be Fixed.” Vox, February 17, 2021. https://www.vox.com/22252625/america-racist-housing-rules-how-to-fix. [5] Rouse, Cecilia, Jared Bernstein, Helen Knudsen, and Jeffery Zhang. “Exclusionary Zoning: Its Effect on Racial Discrimination in the Housing Market | The White House.” The White House Blog, June 17, 2021. https://www.whitehouse.gov/cea/written-materials/2021/06/17/exclusionary-zoning-its-effect-on-racial-discrimination-in-the-housing-market/. [6] Rouse, Cecilia, Jared Bernstein, Helen Knudsen, and Jeffery Zhang. “Exclusionary Zoning: Its Effect on Racial Discrimination in the Housing Market | The White House.” The White House Blog, June 17, 2021. https://www.whitehouse.gov/cea/written-materials/2021/06/17/exclusionary-zoning-its-effect-on-racial-discrimination-in-the-housing-market/. [7] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. "In wealthy Bethesda, Md., for example, there is one pediatrician for every 400 children. In Southeast Washington, there is one for every 3,700 children." [8] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. "Commutes to and from high-poverty neighborhoods can take up to two hours, cutting into the time parents spend with children after work." [9] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. "And 75 percent of American children attend their neighborhood school — meaning zoning rules affect the quality of their education, economic opportunity and earning power later in life…As the urban scholar David Rusk put it in a report on public schools, ‘Housing policy is school policy.’" [10] McGahey, Richard. “Zoning, Housing Regulation, And America’s Racial Inequality,” June 30, 2021. https://www.forbes.com/sites/richardmcgahey/2021/06/30/zoning-housing-regulation-and-americas-racial-inequality/?sh=4a7cf3fa7d86. "In 2019, the New York Times produced striking maps of how much single-family zoning dominates residential land in cities. And it wasn't just conservative cities— high levels were found in Minneapolis (70%)}, Los Angeles (75%)}, Seattle (81%)}, and San Jose (94%)}." [11] McGahey, Richard. “Zoning, Housing Regulation, And America’s Racial Inequality,” June 30, 2021. https://www.forbes.com/sites/richardmcgahey/2021/06/30/zoning-housing-regulation-and-americas-racial-inequality/?sh=4a7cf3fa7d86. [12] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. “Housing remains the major unfinished business of the civil rights movement," [Richard] Rothstein said." [13] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. [14] Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. [15]Winkler, Elizabeth. 2017. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post. September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/. [16] Demsas, Jerusalem. “America’s Racist Housing Rules Really Can Be Fixed.” Vox, February 17, 2021. https://www.vox.com/22252625/america-racist-housing-rules-how-to-fix, Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/,Rouse, Cecilia, Jared Bernstein, Helen Knudsen, and Jeffery Zhang. “Exclusionary Zoning: Its Effect on Racial Discrimination in the Housing Market | The White House.” The White House Blog, June 17, 2021. https://www.whitehouse.gov/cea/written-materials/2021/06/17/exclusionary-zoning-its-effect-on-racial-discrimination-in-the-housing-market/. [17] Demsas, Jerusalem. “America’s Racist Housing Rules Really Can Be Fixed.” Vox, February 17, 2021. https://www.vox.com/22252625/america-racist-housing-rules-how-to-fix, Winkler, Elizabeth. “‘Snob Zoning’ Is Racial Housing Segregation by Another Name - The Washington Post.” The Washington Post, September 25, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/.