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Excerpted From: Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-free Housing Ordinances, 118 Michigan Law Review 173 (November 2019) (349 Footnotes) (Full Document)


DeboraharcherCrime-free housing ordinances and programs are part of the expanding web of zero-tolerance policies adopted by private landlords and public housing authorities. These policies ban renting to individuals with a criminal history or allowing those individuals to live with their families. In many cases, they bar and expel people from rental housing without consideration for the amount of time that has passed since the conviction, the nature of the underlying conduct, the actions of a formerly incarcerated person postconviction, or the preexisting racial and class disparities in the criminal legal system. Take the story of Melvin Lofton. At the age of twenty, Mr. Lofton was convicted for burglary and theft. Today, at the age of fifty-one, Mr. Lofton has been out of prison for over twenty years. Yet his conviction makes it extremely difficult to find housing on his own. Or, consider the story of a New York mother threatened with eviction after her fifteen-year-old son was "banned" because of an arrest for marijuana possession. These stories are not unique. Across the country, people involved in the criminal legal system and their families are being squeezed out of various housing markets. At best, many of these people find themselves with one option: to live in poor communities of color already struggling with a shortage of affordable housing and the impact of high concentrations of residents with criminal records.

The adoption of crime-free housing ordinances and programs ("crime-free ordinances") is becoming a national trend. According to one estimate, approximately 2,000 municipalities across forty-eight states have adopted crime-free housing ordinances. These local ordinances have the purported goal of stemming crime in rental housing by forcing landlords, either through mandatory action or seemingly voluntary guidance, to exclude or evict tenants who have had some degree of contact with the criminal legal system. As I will explain, while there is no evidence that these ordinances reduce crime, there is reason to believe that they play a role in restricting access to affordable housing and promoting racial segregation.

The impact of crime-free ordinances on racial segregation should be a matter of great public concern. At a time when America's population has become more racially diverse, extreme residential segregation on the basis of race nonetheless persists. The United States has a long and complicated history of racial segregation in housing, enforced through public policies, individual acts of discrimination, and mob violence. The cumulative effects of this segregation on people of color are profound. Research has consistently concluded that Black and Latinx people living in racially segregated communities, with the concentrated poverty that often accompanies such segregation, have profoundly limited life opportunities. Residential segregation affects an individual's access to quality education, employment opportunities, government services, and social capital. Residents of racially segregated communities also experience increased contact with the criminal legal system--one of the critical drivers of unequal opportunity in America. Poor, isolated, over-policed, and under-resourced communities of color are a legacy of housing discrimination.

Yet, despite the persistent impacts of residential racial segregation, housing discrimination is often perceived as a relic of history, solved long ago with the passage of the Fair Housing Act of 1968 and decades of its enforcement by the government and private citizens. According to this narrative, lingering segregation is largely driven by regrettable but understandable private choices beyond the reach of the law--rational decisions motivated by the desire to live in safe communities with high-quality schools, good amenities, and high property values. The narrative concludes that the fact that safer and more resourced communities happen to be predominantly White is mostly a result of historic racial discrimination, not current laws, policies, or practices.

As with many narratives about the end of government-sponsored racial discrimination, the truth is significantly more complex. Racial segregation continues to be a problem not simply of history, but of current design. Although the nature of racism in housing continues to change, government policies continue to sustain racial segregation, often working to resegregate communities that had managed to achieve some level of integration.

Local laws are often more central than federal or state laws to creating and perpetuating racially segregated neighborhoods. Exclusionary local laws and policies are among the primary mechanisms used by predominantly White communities to ward off racial integration. Seemingly race-neutral local laws have had a profound role in driving systemic racial exclusion and residential segregation. Exclusionary zoning laws are the paradigmatic example, effectively erecting fences that exclude poor people of color from that community. But exclusionary localism did not begin or end with exclusionary zoning laws.

Crime-free ordinances are an emerging and increasingly effective tool of exclusionary localism. Proponents of crime-free housing ordinances, which have their roots in the law enforcement community and are based on principles of policing, assert that the ordinances will deter criminal activity in a community by punishing private landlords and tenants for the suspected criminal activity of residents. The ordinances and programs take various forms, but all encourage or require landlords in the municipality to take steps aimed at keeping people with criminal legal system contacts out of rental housing and, ultimately, out of the municipality altogether.

Troublingly, crime-free ordinances extend the reach and impact of these types of exclusionary policies, moving them from optional to mandatory for private landlords and stretching the definition of "criminal activity" beyond any reasonable definition of crime. These ordinances affect people who cannot reasonably be said to pose a threat to the health or safety of other residents. Crime-free ordinances not only block tenants like Mr. Lofton because of unreasonably long periods of time during which convictions are considered. By casting such a wide net, they also may exclude individuals with convictions for shoplifting, jaywalking, or driving on a suspended license. Even more disturbing, crime-free ordinances criminalize and exclude people without any conviction at all: the individual stopped by the police on an almost daily basis because of discriminatory policing or the friends repeatedly accused of loitering for hanging out in a community park.

There is a long history of using the narrative of Black criminality as a justification for segregation. Indeed, the assumption of Black dangerousness stubbornly remains a central part of America's cultural view and a relentless narrative that drives debate and policy ranging from criminal justice reform to education. Crime-free ordinances fit squarely into this historical narrative. So it should be no surprise that laws ostensibly motivated by the desire to keep certain communities "safe" would act as a fence against racial integration. Racial discrimination and racial disparities in the criminal legal system are undeniable. By using contact with the criminal legal system as a tool for exclusion, documented racial biases in policing and the criminal legal system are imported into the private housing market, furthering systemic racial exclusion and residential segregation.

Study of the issues raised by crime-free housing ordinances is just emerging in the legal literature. This Article is the first to explore in-depth the racially exclusionary impact of crime-free ordinances. The Article proceeds in five parts. Part I provides a brief overview of the ways in which exclusionary local laws and policies have contributed to racial disparities and segregation. My aim is to suggest that crime-free ordinances emerged against the backdrop of a range of historical practices of predominantly White communities, who have deployed their local authority as a fence to ward off racial integration. Part II then turns to crime-free housing ordinances themselves. Here, I offer a critical examination of the nationwide trend of towns and cities enacting crime-free housing ordinances. Part II focuses particularly on examples from Minnesota and Florida to identify common elements of these ordinances. Part III explores some of the public policy and civil rights concerns raised by crime-free housing ordinances. Although crime-free ordinances present a range of troubling issues, this Part will focus on the impact these ordinances may have on policing people of color, the role they play in advancing a narrative that stigmatizes people with criminal convictions, the racial bias that often motivates their adoption, and the potential they hold to arm police officers with a new tool for harassment and discrimination. Part IV sets forth the ways that crime-free ordinances combine with racialized policing and racial disparities in the criminal legal system to perpetuate racial segregation. Finally, Part V argues that the segregative effects cause of action under the Fair Housing Act should be used to challenge the cumulative impact crime-free ordinances have in reinforcing or perpetuating racially segregated communities. A segregative effects claim challenges a policy or practice that harms communities by "creating, increasing, reinforcing, or perpetuating segregated housing patterns." In focusing on the community-based impact of housing policies and practices, the segregative effects provision presents a mechanism to prevent communities from using the racial bias embedded in the criminal legal system to maintain segregation.

[. . .]

Communities across the United States are beginning to acknowledge the racially disparate impact and far-reaching harms caused by exclusions based on criminal legal system contacts. As a result, there has been progressive movement toward inclusion in areas including employment and political participation. But, for the most part, we have not paid sufficient attention to the ways contact with the criminal legal system affects people's access to housing. My goal in this Article was to highlight this problem by engaging with the proliferation of crime-free ordinances. These ordinances trade on criminal legal system contacts and effectively expel people of color, especially Black people. This expulsion is having the effect of "Whitening" some communities and "Blackening" others, facilitating racial segregation. That, without more, is worrisome. But segregation carries with it additional harms, including inferior education, increased crime, and under- and unemployment. Understood in this way, crime-free ordinances are an engine for racial and economic inequality.

Failure to challenge the proliferation of crime-free housing ordinances and adopt the proposals this Article propounds will exacerbate people of color's exposure to poverty, crime, over-policing, and incarceration. Ensuring the safety of all communities is critically important and should be a priority. Everyone has a right to feel safe in his or her home or community. But crime-free housing ordinances will not make communities safer. They will continue to divide us, further entrenching racial bias and segregation.

Associate Professor of Clinical Law and Co-Faculty Director, Center on Race, Inequality, and the Law, New York University School of Law.

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