The United States Constitution declares in its preamble that the American government operates “to promote the general welfare.” To achieve this end, federal, state, and local governments regularly implement laws. But, to the dismay of racial minority groups, many of these laws often seek to promote the general welfare of some citizens, not all. Housing law, in particular, is a perfect example of the systemic discrepancy in governmental execution, as the provision of sufficient housing is still a racially divided and racially influenced matter.
One should take note that the Constitution declares every American citizen is entitled to the unalienable rights of “life, liberty, and the pursuit of happiness.” This grandiose language can be pragmatically interpreted to suggest that these rights include the ability to freely purchase and rent property. For Black Americans, however, this right, was, and still is, very much context specific. Historically, Black Americans were not given the unalienable right to freely purchase or rent property in white neighborhoods. Prior to the 1950s, Black Americans were lawfully kept out of white neighborhoods through use of racially restrictive covenants. For example, deeds or lease agreements would often include these covenants to prohibit residential properties from being occupied by Black Americans. However, the landmark United States Supreme Court case, Shelley v. Kraemer, turned the use of racially restrictive covenants on its head. The Court in Shelley established that the enforcement of a racially restrictive covenant in state court created an equal protection cause of action in violation of the Fourteenth Amendment.
The effort to abolish racial segregation in housing did not stop with Shelley. Congress passed the Fair Housing Act of 1968. This federal law prohibits discrimination in the selling and renting of homes on the basis of race or color. Yet, after this law surfaced, Black Americans were still forced to live in segregated and impoverished neighborhoods primarily due to racial tensions and local residential zoning laws.
Zoning is a method used by local governments to regulate land use. For example, local governments can designate certain regions of their municipalities for residential, commercial, or industrial uses. Ordinances may even specify the type of structures permitted to be developed on a plot of land. Local governments can draft zoning ordinances in such a way as to promote the interests of some of its citizens, while excluding others, especially Black Americans. Because Shelley v. Kraemer and the Fair Housing Act taught the country that overt discriminatory practices in housing were unacceptable, exclusionary zoning practices were put into full effect. Rather than overtly declare that Black Americans were prohibited from moving into white neighborhoods, zoning ordinances established development requirements or restrictions to make it nearly impossible for Black Americans and low-income individuals to afford housing. For example, an exclusionary zoning ordinance might impose strict density restrictions, thereby prohibiting the development of multi-family housing structures. Alternatively, the ordinance might mandate a lot size requirement to promote development of single-family homes, which require purchasers to secure home-loan financing from a bank. These ordinances increase the amount of housing or development costs, closing the door to housing opportunities in the face of low-income individuals. Using these zoning laws, local governments can effectively ensure a type of socio-economic segregation, which consequentially has a disparate impact on low-income Black Americans.
A relatively recent example demonstrating the use of exclusionary zoning occurred in Westchester County of New York. In 2006, the Anti-Discrimination Center sued Westchester because of its racially segregated towns and exclusionary zoning practices. In 2009, Westchester County and the Department of Housing and Urban Development (HUD) entered into a settlement agreement, requiring Westchester to build 750 affordable housing residences in an effort to promote racially and economically integrated societies. Although Westchester was ahead of schedule with the development of these residences, the county placed these homes far from affluent white communities governed by exclusionary zoning laws. The settlement agreement provided that Westchester County must promote nondiscriminatory housing practices such as eliminating any zoning rules that prohibit the development of affordable housing. However, the County Executive, Rob Astorino, vetoed a bill that would require landlords to accept government vouchers as rental payments in affluent areas. According to Astorino, he vetoed the bill to take a stand against unwarranted invasion by HUD and the federal government.
To be sure, Astorino’s stand for federalism and state power is severely misplaced when asserted in the context of racial and economic disparities in housing. Exclusionary zoning practices are the modern day representations of the “racially restrictive covenants” once banned by Shelley. These practices represent failed equality in the housing market for racially and economically diverse groups. These practices further drive a dagger into the beating pulse of the promise made by the Constitution that all citizens have the unalienable rights to life, liberty, and the pursuit of “property.” Finally, these modern day practices signify a loud crying contradiction to the American government’s declaration to promote the general welfare of its citizens. The preamble could quite literally read “We the people . . . promote the general welfare [of our economically valued white citizens, while disregarding the basic needs of the urban black poor,]” and it would appropriately capture the sad reality of our housing system today.