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Noah M. Kazis, Fair Housing, Unfair Housing, __ Wash. U. L. R. Online (forthcoming), available at SSRN.

Walking across the parking lot from my law school to the annex building where my office is temporarily relocated, I spotted a trusted and dear colleague. She and I hugged and soon started talking about a sore topic for me, how my 1L property course was coming along. This is the second year I have been relegated to teaching my once four credit course as a two credit course. Just another one of the tragic consequences of Covid, I guess.

Only having two credits has meant that the discussion of many property topics, including housing law, has been truncated. In frustration, I uttered the words, “I’m just going to KISS it.” Her eyes widened as she inquired, “KISS it, what is that?” I replied, “I’m Going to Keep It Simple Stupid.” We looked at one another knowingly, we both laughed, and continued on our separate ways to our offices.

Soon thereafter, I came across Noah Kazis’ article, Fair Housing, Unfair Housing, in which he makes an insightful contribution to the seemingly intractable problem of unfair housing practices. Kazis’ thesis confirmed my weeks earlier conversation with my colleague; sometimes the best solution is found in keeping it simple.

Kazis offers his reader a plausible approach to impeding practices destined to result in unfair housing practices. Instead of focusing on defining and promoting fair housing, Kazis asks his reader to focus on how to eliminate practices that are certain to promote unfair housing outcomes.

The 1968 Fair Housing Act (FHA) mandates that the federal government and its grantees affirmatively further fair housing. In the more than 50 years since the FHA’s enactment, the country has made only modest progress towards significantly curtailing discrimination in housing.

As Kazis explains, the definition of fair housing is “multi-faceted, contested, and open-ended” as are the political, economic, social, and land-use regimes across the 50 states and their suburban, urban, and rural localities. (P. 7.) As a consequence of the indeterminacy of the definition and the complexity of the national housing landscape, we end up as a country where we are now. Without a consensus on what is “fair housing,” states and localities are virtually unencumbered in articulating their visions of fair housing, often to the detriment of making sustained progress in reducing discrimination in housing.

Kazis asks his reader to disrupt this way of thinking and to pivot away from trying to prescribe what constitutes fair housing. He suggests an alternative path.

Instead of articulating what fair housing looks like across the nation’s localities, Kazis encourages us to keep it simple and instead focus on the exclusionary practices that most scholars, planners, and housing experts agree tend to promote or increase exclusionary housing. Such practices include large lot zoning, bans on multi-family housing, and public housing residency preferences in predominantly white communities. (Pp. 15-16, 18.) The fix is found in dealing with the obvious first; those practices that are either already illegal or that should be suspect.

Kazis’ strategy can be imagined in two parts. First, HUD should focus on housing policies that a broad consensus of experts, advocates, providers, and consumers of housing agree are impediments to fair housing. HUD would promulgate and maintain a list of specific policies and practices, both public and private, historic and quantitative, that are suspect because of their correlation with unfair housing practices.

Second, public and private actors that maintain any of the identified suspect practices could continue these public or private practices provided they could justify, in detail and with specificity, why the suspect policy did not make housing less fair. Actors would be required to quantify the precise impacts of their suspect policies in order to address or justify them. If a public or private actor failed to meet its burden, it would be required to fully mitigate the impacts of its choices that result in unfair housing. (P. 16.)

In our complex, federal system, it is much harder to articulate a national solution to unfair housing than it is to identify laws, policies, and practices that almost facially make unfair housing more likely to occur and to persist. Kazis shifts the burden onto state and local governments to justify policies that HUD has identified as warranting special scrutiny.

His proposal seeks to clearly identify and focus on the “worst practices” that make unfair housing so pernicious. In so doing, Kazis argues there is a greater likelihood of connecting antidiscrimination enforcement processes with existing fair housing planning. (P. 18.)

Kazis is articulating one vision of how to create “clear metrics or policy prescriptions” to achieve fair housing. (P. 13.) He seeks to build upon consensus, those practices we can all agree tend to impede fair housing. Let us identify the worst practices, that destine us for unfair housing outcomes, and then incentivize states and localities to abandon these worst practices by subjecting them to consistently and persistently high levels of scrutiny. “It is time to refocus on unfair housing”–indeed.

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Cite as: Carol Necole Brown, “KISS” It and Disrupt Unfair Housing, JOTWELL (July 11, 2022) (reviewing Noah M. Kazis, Fair Housing, Unfair Housing, __ Wash. U. L. R. Online (forthcoming), available at SSRN),