Eduardo M. Peñalver: The Fair Housing Act’s Original Sin

doors painted different colors, each with a different sign, reading

US Dept. of Housing and Urban Development's Fair Housing Door exhibit, from the 50th anniversary celebration of the Fair Housing Act. photo / U.S. Dept. of Housing and Urban Development

Eduardo M. Peñalver is the Allan R. Tessler Dean and Professor of Law. He became Cornell Law School's 16th dean on July 1, 2014. Peñalver most recently served as the John P. Wilson Professor of Law at the University of Chicago Law School.

He received his B.A. from Cornell and his law degree from Yale Law School. Between college and law school, he studied philosophy and theology as a Rhodes Scholar at Oriel College, Oxford. Upon completing law school, Peñalver clerked for Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit, and at the Supreme Court for Justice John Paul Stevens.

Peñalver's scholarship focuses on property and land use, as well as law and religion. His work explores the way in which the law mediates the interests of individuals and communities. His writing on property has appeared in numerous leading law journals. His book, Property Outlaws (coauthored with Sonia Katyal), published by Yale University Press in February 2010, explores the vital role of disobedience within the evolution of property law. His most recent book, An Introduction to Property Theory (coauthored with Gregory Alexander), was published by Cambridge University Press in 2011.

Peñalver previously taught at Cornell Law School (2006–12) and at Fordham Law School (2003–06). He has also been a visiting professor at Harvard Law School and Yale Law School.

Abstract:

From the outset 50 years ago, the Fair Housing Act has had a fundamental imbalance in its dual statutory missions. The act — enacted as Title VIII of the Civil Rights Act of 1968 — familiarly bars discrimination in housing generally, as well as targeting lending, brokerage activities, and other aspects of the housing market that were particularly problematic at the time of the act's passage. Antidiscrimination was — and remains — crucial, but the Congress that enacted the act had a broader ambition in mind. That Congress sought to combat residential segregation and the dire concentration of poverty by race and ethnicity that was at the heart of the urban unrest of the 1960s. In the act, Congress recognized that the persistence of what people at the time called ghettos created distinct harms that required federal intervention to remedy, much as the federal government had long been intimately involved in the creation and isolation of these communities. 

The act's pro-integration mandate echoes in a sweeping purpose statement and in core liability provisions that courts have interpreted to apply not to acts of discrimination, but also to actions or policies that perpetuate segregation. Congress, however, delegated the act's integration mission most directly to the U.S. Department of Housing and Urban Development, and other federal agencies, charging them with the obligation to administer housing and urban development programs "in a manner affirmatively to further the purposes" of the act. Courts have made clear that this statutory language means that it is not enough to combat the pathologies of the private market or even for the federal government to refrain from actions that foster segregation. Rather, the act charges the federal government with the task of affirmatively bending its resources and regulatory power to "assist in ending . . . segregation, to the point where the supply of genuinely open housing increases."

The challenge — also from the outset of the act — has been that the institutional structures and legal tools that Congress established to advance the act's affirmative integration mandate rely largely on a discretionary agency apparatus. As to antidiscrimination, the act and later amendments created mechanisms for individual redress and facilitated private litigation to combat discrimination — hamstrung originally and imperfect still, but ultimately not subject to agency control. By contrast, the act's mandate to directly advance integration and reduce racial concentrations of poverty were to be embodied in a panoply of grant conditions, delegated planning mechanisms, project siting factors, and the like — all within HUD's discretion as a functional matter. 

It was entirely predictable — perhaps inevitable — that this aspect of the act's legal commands would be inconsistently embraced as political priorities and perspectives shifted from administration to administration. Indeed, the "affirmatively to further" aspect of the act has been mostly ignored in the act's first 50 years. And recent attempts to give life to the mandate during the Obama Administration are now being unwound by the Trump Administration.

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