The Price of Equality: Fair Housing, Land Use, and Disparate Impact

48 Columbia Human Rights Law Review 98 (2017)

UCLA School of Law, Public Law Research Paper No. 16-40

51 Pages Posted: 8 Sep 2016 Last revised: 1 Feb 2018

See all articles by Jonathan Zasloff

Jonathan Zasloff

University of California, Los Angeles (UCLA) - School of Law

Date Written: August 14, 2016

Abstract

What happens when local government policies run head-on into federal civil rights laws? Nowhere does this question assume greater importance than with land use and fair housing, yet in the nearly half-century since the passage of the Fair Housing Act (FHA), courts and commentators have skirted the question. With the Supreme Court’s recent decision in Inclusive Communities Project v. Texas, the most significant fair housing decision in the nation’s history, they can no longer do so. This Article represents the first sustained effort to show how the FHA affects land use, the most important power that cities have under American localism. The Supreme Court held for the first time that the FHA allows disparate impact liability, and outlined when such disparate impact cases can be brought. But it left many crucial questions unanswered, and this Article attempts to fill the gap. It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed. The FHA comes nowhere close to abolishing zoning, but it does insist that local zoning must no longer exclude racial minorities, and the Court’s decision makes clear how fair housing advocates can and should use the law to fight such exclusion. If localities no longer have the discretion to exclude people of color, then that is the price of equality.

Keywords: Sustainable Development, Race, Civil Rights, Affordable Housing, Zoning, Land Use, Segregation, Fair Housing

Suggested Citation

Zasloff, Jonathan, The Price of Equality: Fair Housing, Land Use, and Disparate Impact (August 14, 2016). 48 Columbia Human Rights Law Review 98 (2017); UCLA School of Law, Public Law Research Paper No. 16-40. Available at SSRN: https://ssrn.com/abstract=2835725

Jonathan Zasloff (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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