Fair Housing After “Big Government”: How Tax Credits Are Reshaping the Legal Fight Against Racial Segregation

ABSTRACT

In June 2015, the Supreme Court ruled, in a 5–4 split decision, that facially neutral state policies and practices that unintentionally segregated minorities could violate the Fair Housing Act. This article draws on the Texas fair housing litigation to engage broader debates on fair housing as a legal framework, and its potential for disrupting or transforming patterns of structural inequality. Specifically, it examines how shifts in the ways that society designs and implements housing policies may encourage courts, advocates, and legal actors to think about fair housing issues in new ways. Moving beyond the emphasis on disparate impact, my findings elaborate on two mostly overlooked ways that LIHTC reshapes the legal battleground in the fight for fair housing, by opening contentious debate on (a) the state level of government, and (b) passive government administration of policies. I interpret these effects as unintended consequences of the gradual shift toward market-driven policies that allow officials to govern at a distance.

KEYWORDS:

• Low-income housing
• tax policy
• law
• markets

Acknowledgments

I would like to thank Paul Jargowsky, Natasha Fletcher, and the anonymous reviewers for helpful comments on this manuscript.

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1. Texas Department of Housing, & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. (2015).

2. Alana Semuels, “Supreme Court vs. Neighborhood Segregation,” The Atlantic, June 25, 2015; Kriston Capps, “Texas Refuses to Follow Fair Housing Rules,” Citylab, February 3, 2016; Emily Badger, “Supreme Court Uphold a Key Tool Fighting Discrimination in the Housing Market,” The Washington Post, June 25, 2015.

3. Most of the antidiscrimination literature and case law focuses on the realm of employment, not housing, and in both cases the founding legislation is vague on what actually constitutes discrimination. Early interpretations assumed that discrimination implies some kind of intentional action, but legal scholars have constantly stressed the difficulty of proving intent. In both employment and housing case law, courts eventually developed the idea that discrimination might entail systematically unequal outcomes, even if caused by patterns of action that are not obviously intentional. Thus, the contrast between discriminatory intent and disparate impact has emerged as a key distinction in conceptualizing fair housing violations.

4. Donna Kimura, “LIHTC Market Unsettled After Election: Syndicators, Investors Discuss the Prospects of Tax Reform,” Affordable Housing Finance, November 29, 2016.

Additional information

Notes on contributors

John N. Robinson

John N. Robinson III is an assistant professor of Sociology at Washington University in St. Louis. His research and teaching explores how large-scale economic changes are reshaping the politics of race, poverty and neighborhood inequality within and around American cities, and examines a range of pressing urban issues, including affordable housing, tenant rights campaigns, and municipal reliance on punitive fines and fees.