The Fair Housing Choice Myth

54 Pages Posted: 9 Jan 2014

Date Written: 2012


The Fair Housing Choice Myth examines why racial segregation persists in residential neighborhoods despite the fact that the nation codified the policy of equal housing opportunity over four decades ago. In passing the Fair Housing Act in 1968, Congress expressed the purpose of “replacing ghettoes by truly integrated and balanced living patterns.” The Article moves beyond the usual critique regarding strengthening enforcement provisions and proving intentional discrimination in order to address a structural flaw in the Fair Housing Act: the Act’s nondiscrimination provisions focus on consumers of color and industry members, but cannot reach third-party white consumers who choose to “opt out” of integration.

The Article considers the role of “housing choice,” as that concept is understood in equal housing opportunity law and policy, and questions whether it actually exists for consumers of color, or whether it is more myth than reality. The Article examines the research on neighborhood preferences of black and white consumers, noting that white consumers desiring all-white enclaves are better able to exercise their housing choices than black consumers desiring more integrated neighborhood settings. It considers whether federal housing policy has helped curtail or facilitate this phenomenon. The Article examines the Fair Housing Act’s nondiscrimination provisions and concludes that they cannot address white housing preferences in favor of segregation. In addition, federal initiatives that are aimed at eliminating ghettoes are found lacking because they help deliver on the “exit strategy” without delivering the “entrance strategy,” thus failing to assist segregated, isolated ghetto residents to enter communities of opportunity.

The Article then examines what is described as the missing link between the Fair Housing Act’s nondiscrimination provisions and real housing choice for all: the Act’s requirement that the Secretary of the U.S. Department of Housing and Urban Development (HUD) affirmatively further fair housing in all its programs and activities. This heretofore undefined provision could be interpreted to create the “entrance strategy” by prohibiting the use of billions of federal housing and community-development dollars annually to subsidize and reinforce segregation, and instead requiring incentives for inclusive communities. The fact that HUD has never issued a regulation on its affirmative responsibility makes the Article important and relevant to a very real and pressing issue: the persistent failure of law to deliver real housing choice and opportunity to communities of color in housing markets across the United States.

Keywords: fair housing, racial segregation, neighborhoods, housing choice, HUD

Suggested Citation

Seicshnaydre, Stacy E., The Fair Housing Choice Myth (2012). 33 Cardozo Law Review 967 (2012), Tulane Public Law Research Paper No. 14-1, Available at SSRN:

Stacy E. Seicshnaydre (Contact Author)

Tulane Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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