Question

Unfair Housing Act

Law Professor Deborah Archer examines how local laws governing real estate markets perpetuate and legitimize segregation

By Nicole Symmonds

This past year has been marked by not one but two pandemics: COVID-19 and the plague of systemic racism. They may seem unconnected, but racial bias is why Black communities are among those most vulnerable to the virus. Civil rights and racial justice scholar Deborah Archer is acutely familiar with the inequitable practices that degrade Black lives. The professor of clinical law and director of the Civil Rights Clinic at the School of Law, who was just elected as the new president of the ACLU national board, studies systemic racism in the criminal legal system. Archer’s recent research focuses on how crime-free housing ordinances—laws that encourage or require private landlords to exclude or evict tenants who have had encounters with the criminal legal system—enable discrimination.

In “The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances,” published in the Michigan Law Review, she explores the ways these ordinances create barriers for upward mobility and racial integration. “They have the purported goal of stemming crime in rental housing, but the truth is that they are more effective at excluding racial minorities and promoting racial segregation,” explains Archer, co-faculty director of NYU’s Center on Race, Inequality, and the Law. “These policies treat applicants and tenants as suspects, blurring the line between housing determinations and policing.”

How do crime-free housing ordinances embody the residue of Jim Crow?
Empowering or requiring landlords to evict or exclude people with criminal legal system contacts is in the Jim Crow playbook. White people often justify the creation of White-only spaces by perpetuating a narrative of Black criminality. That narrative is something that we’ve seen through so many aspects of American history, and it influences policy and practices. That’s the rhetoric that continues to drive crime-free housing ordinances and criminal legal systems’ racial bias. The United States has this very long, complicated, and sad history of racial segregation and housing. That’s been forced through other policies and individual acts of discrimination and mob violence. I think we often forget that segregation was state-sanctioned and state-facilitated.

What rights do Black prospective renters and owners have in the face of such discriminatory practices?
Certainly, civil rights laws and equal protection under the United States Constitution should protect against things like these. But we construe our laws in ways that make it very difficult to get at the kind of systemic racism that causes crime-free ordinances to have the impact that they do. I do believe there are rights under the Fair Housing Act, but one of the challenges is that poor people of color who are being evicted have so few ways to protect their rights to housing. So the sometimes arbitrary decisions that police are making, that someone has been engaged in criminal activity and therefore should be evicted, are effectively unreviewable because housing court is ineffective to help challenge the discrimination being levied through current housing ordinances. People have a right to be presumed innocent until proven guilty. Crime-free housing ordinances are tagging a label of exclusion onto people who have not been convicted of a crime.

“The United States has this very long, complicated, and sad history of racial segregation and housing. I think we often forget that segregation was state-sanctioned and state-facilitated.”

How can we decouple housing policy and the criminal legal system?
We have to look at local laws that allow certain communities to hoard opportunities within their walls and exclude people they believe are less deserving. We need to stop making assumptions based on policing. Stop viewing people who are trying to come into our community as suspects in the way policing-based housing policies encourage or require us to do.

Is the language of criminality also a factor? For instance, using “person who has involvement with the criminal legal system” rather than “criminal” and “criminal justice system”?
Language is so important in the narratives, and narratives have the power to perpetuate White supremacy. The stories that we often tell make the discrimination, inequality, and segregation seem natural. Those engaged in the fight for racial justice and equality need to challenge those narratives, to tell stories that more accurately convey the systems and institutions that have come together to create income inequality. Telling those powerful narratives that can transform starts with the language we use. It’s important to use language that is humanizing and empowering for those who have been traditionally disempowered and dehumanized.

Is there reason to be hopeful about the future?
I feel optimistic because of how communities of color have joined with other communities to demand change, demand a full accounting of anti-Black oppression, and to understand the way it is impacting us. They’re not accepting empty promises. I appreciate the people out there still fighting and that we’re having what feels like a new and more meaningful conversation about race that feels truer to the experiences of Black people. The challenge is that this window of opportunity to see some of the changes we’ve long been fighting for is closing soon. And before it closes, we have to lay the foundation for the change we want to see over the next years.