Is geography fate, as Ralph Ellison proclaimed;1 is geography our destiny; does it determine our life’s course? I tend to think so because my own personal life story has been incredibly, indelibly, positively impacted by geography. Perhaps this is why I was drawn to share Noah M. Kazis’ forthcoming article, The Radical Fair Housing Act. In his article, Professor Kazis describes the radical features and nature of the Fair Housing Act (FHA) that call into question whether housing markets should be restructured in pursuit of housing equality rather than conceding that housing equality may only be pursued within existing structures.
While some take the view that housing discrimination and segregation continue to persist, that an adequate stock of affordable housing continues to elude most communities, and that this evidences the failures of the FHA, Kazis’ approach is different, fresh, and yes, even hopeful. He has chosen to focus on the FHA’s strengths and its “structural ambitions” that make the FHA’s approach to discrimination “broader, more searching, and already more structural” than Title VII’s anti-discrimination approach. (P. 16.) This is not to say that Kazis ignores the FHA’s weaknesses; rather, he chooses to focus on the FHA’s “radical ambitions” because only by recognizing the distinctive nature of the FHA’s structure and approach to housing discrimination, can the FHA’s breadth and strength be fully appreciated and built upon.
Professor Kazis frames most of his discussion of the FHA, uncovering its radical structure and place within the most important civil rights legislation, by comparison with Title VII and its ban on employment discrimination. This analytical framework and baseline works well and makes obvious sense. A 5-4 majority of the United States Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, treated Title VII as an important piece of civil rights legislation that provides a framework for understanding the FHA. And, of course, the lower federal courts have also treated Title VII has the standard for anti-discrimination law, as Kazis notes.
Professor Kazis adeptly compares and contrasts the FHA’s distinct structure with that of Title VII as he makes the case to his reader that the FHA’s structural breadth and concept of the complexities of discrimination indeed exceeds that of Title VII. His structural analysis of the FHA occurs in five parts: [1] geographic allocation of opportunity; [2] economic organization of opportunity; [3] political organization of opportunity; [4] alternative opportunities; and [5] restructuring opportunity. Within these five areas, Kazis’ focus is on illuminating the vast potential of the FHA. Geographically, he describes the narrow way in which Title VII considers geography relative to the FHA. According to Kazis, Title VII never considers whether employers have created a fair allocation of employment opportunities through their geographic organization, in contrast to the FHA which routinely pays attention to the organization of housing markets and whether this organization creates or reinforces housing inequality. Discriminatory redlining, which is prohibited under the FHA, is an example of the FHA addressing harms that can arise when lenders do not open branches in minority neighborhoods and otherwise do not extend mortgage credit in minority neighborhoods, which affects access to housing.
Kazis also discusses how Title VII addresses economic opportunities more narrowly than the FHA. While Title VII does not address discrimination in the built environment; the FHA can help change the built environment. As an example, Kazis makes the case that generally, Title VII does not question the design of equipment in the workplace which might have a discriminatory impact against woman if, for instance, the equipment is designed for a typical male body-type. The FHA, in regulating the conditions that are necessary for equal access to housing, can help modify the built environment to change the range of housing options that are available, for example by “incentivizing” inclusionary zoning.
Kazis spends less time on political organization of opportunities likely because there has not been as much judicial activity in this area as in the geographic and economic spheres of his article. Kazis discusses the potential that the FHA’s breadth might be great enough “to question the very structure of local democracy” in the case in which a locality’s structure or incorporation itself is discriminatory. While Kazis acknowledges that this type of litigation may be on the very edges of FHA liability, this type of “structure of government” claim is clearly outside of the type of claim that would be cognizable under Title VII. (P. 32.)
Alternative opportunities for housing, in the context of the FHA, determine whether a plaintiff has incurred an injury. Kazis uses the example of a rezoning denial to illustrate his point. In a market beset by a housing shortage, denial of permission to construct affordable housing can create disparate impacts on protected classes of individuals. In contrast, in a market where there is a glut of affordable homes, it would be significantly harder to prove disparate impact. In contrast, in Title VII adjudications, job availability locally is irrelevant to the Title VII analysis which asks simply whether, at the “firm-level,” there has been employment discrimination.
Finally, as it pertains to restructuring, Kazis describes the distinction between Title VII and the FHA as follows. Under Title VII the job structure and the jobseeker’s qualifications are treated as fixed. In contrast, the FHA restructures both the opportunities that are available for renters and buyers and it can also restructure the nature of the qualifications of the renters and buyers by, for instance, protecting their ability to secure the prerequisites for housing (i.e. homeowners’ insurance) on a non-discriminatory basis.
After establishing this rich foundation, Professor Kazis takes a deep dive into the statute itself, explaining the structure of the text of the FHA—who is covered, what conduct is covered, its purpose, and legislative history. He concludes by helping the careful reader appreciate the contemporary significance of understanding the FHA’s radical ambition and building upon it. From affirmatively furthering fair housing to online platforms, Kazis makes the argument that the FHA has been a stronger vehicle for anti-discrimination litigation than other civil rights statutes.
Professor Kazis’ article highlights the FHA’s potential and looks for the good. He attempts to shape his reader’s understanding of the FHA as a statute that seeks to change the entire character of the domestic housing market. I appreciate his ambition and the expanded understanding of the FHA that Professor Kazis offers.
- Lawrence Patrick Jackson, Ralph Ellison: Emergence of Genius, Ch. 1 (2001); E.g., 1 National Research Council, America Becoming: Racial Trends and Their Consequences 125 (2001); Ernie Hood, Dwelling Disparities: How Poor Housing Leads to Poor Health, , 113 Environmental Health Perspectives A 310 (May 2005).
