Scholar shows how to use fair housing law to combat gentrification’s harms.
Gentrification is a paradox. It has perpetuated segregation, pushed low-income residents of color from their communities, and reduced access to affordable housing. At the same time, some argue that gentrification has revitalized cities, reduced segregation, and improved urban education.
Gentrification can be understood either as “gentrification-as-integration” or “gentrification-as-segregation,” argues Olatunde C. Johnson, professor at Columbia Law School. With the paradox of gentrification front of mind, Johnson explains that the Fair Housing Act can be used to challenge harmful zoning practices and inspire proactive action to protect residents of color.
In the late 1960s, when the U.S. Congress passed the Fair Housing Act, elected representatives had not even considered gentrification as a concept. The Kerner Commission, which convened to make recommendations on how to alleviate racial tension in the wake of the uprisings in the 1960s, found that Black Americans were “trapped by discrimination and structural racism in under-resourced, crowded, central cities.” As a result, Congress enacted the Fair Housing Act to combat racial segregation by providing opportunities for Black residents to move out of cities into more affluent, whiter suburbs.
The law’s drafters had not considered that one day affluent, mostly white citizens would leave the suburbs for lower-income minority neighborhoods in cities—a process now known as gentrification. Johnson explains that the influx of more affluent residents into the city shifts market demands and changes the landscape and demographic makeup of an urban community. Gentrified communities witness the replacement of corner stores and diners with boutique gyms and craft breweries.
Johnson explains that gentrification harms low-income communities of color. The influx of affluent residents prices out the current residents who have occupied neighborhoods for generations. From this perspective, gentrification furthers segregation, not integration. In addition, Johnson discusses how the flood of white residents has led to the criminalization of everyday activities due to white people calling the cops on their Black neighbors whom, due to racial bias or animus, white residents perceive as suspicious.
Yet, Johnson also points out that the resources brought into cities because of gentrification have several benefits. Gentrification increases economic resources in urban communities, which can improve schools, parks, and other infrastructure. Johnson also posits that the racial integration caused by gentrification can increase interaction between groups, potentially decreasing social hostility.
Because Congress passed the Fair Housing Act to reduce segregation by providing opportunities for mostly Black city residents to move to higher-income suburbs, it might not be immediately clear how to use the Fair Housing Act to help keep residents of color in their rapidly gentrifying neighborhoods.
Johnson posits that, to address harmful zoning practices, litigators can invoke the Fair Housing Act’s disparate impact standard, which prohibits discrimination that is facially neutral but has a negative impact on a racial or ethnic group. For instance, residents at risk of displacement can bring a disparate impact claim to challenge “upzoning,” which refers to the redevelopment of lower-income communities of color for the express purpose of attracting businesses and housing for higher-income residents. This zoning practice often disproportionately harms communities of color because it increases housing prices and leads to increased rates of homelessness or displacement.
But Johnson cautions that winning disparate impact cases is no easy feat. Many disparate impact cases fail due to the difficulty of proving that harms to a racial or ethnic group outweigh any legitimate governmental purpose behind the policy. Furthermore, since the release of Johnson’s article, the Trump Administration finalized a regulation that heightened a plaintiff’s already tall burden of proof in a disparate impact case.
More promising, Johnson argues, is the U.S. Department of Housing and Urban Development’s ability to create a regulation requiring localities to take affirmative steps to further fair housing. The Obama Administration, for instance, required localities to assess and correct barriers to fair housing. Despite the Trump Administration’s revocation of the Obama-era rule, Johnson recounts that many jurisdictions nevertheless adhered to it. As a result, some jurisdictions created and maintained plans that prominently feature solutions to increase affordable housing and reduce displacement.
Although the Fair Housing Act is a critical tool to harness the benefits of gentrification, Johnson also concludes that policymakers should consider a more expansive approach. Specifically, Johnson advocates the redistribution of public goods, community accountability for developers, and prioritization of local voices in governance decisions.
Redistributing public goods requires ensuring that all residents, especially low-income residents of color, have access to public services of at least the same quality that higher-income, mostly white residents enjoy. For instance, all residents should have access to quality public schools. Johnson describes how cities can reserve at least half of the spots in a high performing school for low-income students, which prevents the children of more affluent parents from exclusively acquiring them.
Cities can also implement accountable development practices to stymie the negative impacts of gentrification, Johnson argues. Accountable development practices ask private developers to provide a public benefit in exchange for receiving tax credits. Cities could, for instance, require developers to build a certain number of affordable housing units if they want to develop in a gentrifying community.
Lastly, Johnson emphasizes the importance of community voices in combating the harms of gentrification. Long-term residents of gentrifying communities have been historically kept out of decision-making processes, leading to their displacement and erasure. Johnson highlights some promising solutions to elevate community voices, such as the City of Seattle’s requirement that all major government decisions have a racial impact statement and that a “Racial and Ethnic Equity” office assess how structural inequities have perpetuated racism. To ensure fair housing, it is critical to amplify and listen to community members, primarily residents of color, whom gentrification has negatively affected.