Talking Affordable Housing Without Talking Fair Housing is Bad Faith

Emily Badger recently writes in the New York Times of a renewed rhetorical commitment by HUD Secretary Ben Carson to address the crisis in affordable housing. However, she’s rightly skeptical of the practicability of Carson’s market-based solution to enlarge the supply of housing:

He is probably right. But the kind of housing he describes is impractical, illegal or too costly to build in much of the United States today, in suburbs and big cities alike. Blocking it are: zoning rules that allow only single-family homes; laws that dictate the size of yards; elaborate permits that drive up development costs; and rules that grant neighbors a veto over what is built.

In a recent interview, Carson suggested that such exclusionary zoning laws could disqualify local communities from receiving federal housing assistance.

The problem with Carson’s remarks is that his own department’s actions show them to be hot air; Carson has overseen HUD’s withdrawal from enforcing fair housing laws. Kriston Capps writes in Citylab that civil rights groups have been hammering Carson and HUD for decisions made this summer to open reconsideration of two agency rules, disparate impact and “affirmatively furthering,” that would radically diminish HUD’s scope of action. The first rule change targets policy that establishes a disparate impact on a protected group, rather than proof of discriminatory intent, as the standard to declare a violation of fair housing laws.

In 2015, the U.S. Supreme Court ruled that housing practices that disproportionately negatively affect minorities are prohibited, even when discrimination is not the explicit, stated goal of those practices. That’s the disparate impact standard, and it informs everything from renting to lending to building. A policy that concentrates low income housing vouchers in poor, minority neighborhoods, for example, is every bit as discriminatory as a whites-only listing—per a disparate impact reading of the Fair Housing Act.

Capps has covered this extensively in the last several years and I’ve made use of his reporting in several posts on the issue of fair housing. Essentially, if HUD guts disparate impact standards, it will be impossible for civil rights organizations to prevent discriminatory action by local housing authorities. This is crucial because, although the racialization of poverty in many metro areas is clear, localities can plausibly hide behind class-exclusionary zoning, which is perfectly legal, to limit and isolate mixed income housing development and subsidized housing.

Disparate impact standards were upheld as constitutional in Supreme Court decision upholding a Dallas-area fair housing advocacy group’s suit charging a suburban government acted illegally by concentrating subsidized housing in one part of town. This town, McKinney, was notorious for police violence against black teens in the breaking up of a pool party in a private development. I wrote about how the incident reflected spatial segregation as an embedded part of the community’s culture, an “emotional economy” of white privilege that local government had protected (Olga Khazan’s recent follow-up visit to McKinney shows that despite national media attention, underlying dynamics have changed little).

The “affirmatively furthering” rule dates back to HUD’s founding mandate, but, prior to the Obama Administration’s decision to enforce it, was largely observed in the breach. Stated simply, the principle requires jurisdictions receiving federal funding to take active measures to promote fair housing in their borders. Crucially, as Capps notes, this is not the same thing as incentivizing communities to build more housing: 

While the issues of affordable housing and fair housing are deeply interwoven, they aren’t the same thing. Even if HUD uses the power of the purse to incentivize density and growth, that’s not the same as desegregation. An alternative rule like the one Carson has in mind does nothing to ensure that Houston rebuilds more equitably with Hurricane Harvey recovery funds, for example. A zoning bonus won’t make Houston build low-income housing in neighborhoods of opportunity.

If a town or city can decline an incentive to build a large mixed-income housing development to appease its affluent NIMBY voters (usually a whiter, wealthier homeowning constituency) while suffering no handicap in its ability to receive federal funds (not just for housing), the local political choice is clear. As Badger lays out, this constituency, motivated both by property value and racial exclusion (I’d argue those are historically inseparable) has developed a hammerlock on local development politics that thwarts both inclusion and expansion.

Those messages, from officials in both parties, have been overpowered by the reality that the federal government can do little about fundamentally local laws, and by the bipartisan will of homeowners.

So, while Carson’s seeming sudden embrace of land use reform looks like a confusing coming out as YIMBY (Yes In My Back Yard), the reality is that a federal plan to encourage voluntary building by incentives is pretty much a plan to talk pretty while doing jack squat and evading responsibility for housing integration.

Again, someone tell David Brooks how localism works.

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This Isn’t How Localism Works

David Brooks in the New York Times recently lauded a shift away from federal action toward what he calls a “localist revolution.”

For Brooks, this is entirely positive. Though he seldom touts it, he is a conservative, and part of a movement intrinsically hostile to federal intervention since the era of Civil Rights. Since that time, of course, the rationale has evolved. While white southerners cast the feds as radical interlopers threatening to destroy the very foundation of society, for Brooks, the preferred argument today is that the feds are too conservative, bureaucratic, and slow.

Of course, Brooks’s analysis works (to the extent it does) only because he ignores a number of elephants in the room–that number being precisely fifty. While municipal governments are often keen to embrace labor, employment, civil rights, and environmental policies that reflect local needs and serve local constituencies, state governments, influenced by a growing number of right-wing think tanks, have more and more aggressively engaged in preemption.

So, when Brooks repeatedly lumps together all non-federal levels of government as exemplars of localism (“Localism is the belief that power should be wielded as much as possible at the neighborhood, city and state levels”), he couldn’t be more wrong.

The National League of Cities has issued this report, updated for 2018. It sheds some light on what David Brooks is missing. If you don’t feel like reading it, they have a chart:

Image National League of Cities

This column is remarkable on a paragraph-by-paragraph, sentence-by-sentence level for how wrong it is. I initially thought to prepare an FJM treatment, but it was too much. So instead I’ll make three points. First, Brooks has a naivete about political media that would be almost charming if the stakes weren’t so high. Second, Brooks misconstrues the direction of federal policy with regard to devolution so completely that he can’t possibly be arguing in good faith. And, finally, when Brooks shifts from touting the ideal of localism to laying out the kind of actual policy measures he hopes localism will produce, his column devolves to incoherence.

Here’s Brooks on the media:

[Localism] is thriving because while national politics takes place through the filter of the media circus, local politics by and large does not.

This is, actually, not a good thing, as it reflects a lack of attention from media to local and state affairs. Just this week, Tronc paid off its disgraced former chairman Michael Ferro, making good on a three-year, $5 million annual consulting contract (the carrot offered Ferro to resign when women made credible sexual assault allegations against him) with one lump sum payment, putting the organization nearly $15 million in the hole, a self-inflicted wound the company elected to heal by announcing massive staff layoffs at the New York Daily News. Similar spite-driven layoffs and lockouts have plagued alt-weeklies and other local publications, which have become (unfortunately) the stopgap for coverage of local affairs. And, indulging Brooks’s insistence on lumping antagonistic state and municipal governments together in his “everyone but the feds” definition of localism, coverage of state affairs may be even worse.

It is thriving because we’re in an era of low social trust. People really have faith only in the relationships right around them, the change agents who are right on the ground.

It’s a mystery where this degraded social trust came from, isn’t it? And, not for nothing, but it’s worth pointing out that, partly due to Michigan’s anti-city Emergency Management law, for example, people in Flint can’t count on anyone to get them clean drinking water, while their attorney general has been more interested in suing the federal EPA than in cooperating with it.

This helps us move on to point two, the political character of localism.

Since it will probably be the coming wave, I thought it might be useful to make a few notes on localism:

[narrator: these notes will not be useful.]

Localism is truly a revolution. It literally means flipping the power structure. For the past several decades, money, talent and power have flowed to the centers of national power. Politicians tried to ascend to national office as they advanced their careers. Smart young people flocked to national universities, and then to New York and D.C. The federal government assumed greater and greater control of American life.

No. This is entirely wrong, and what’s more, for Brooks to argue this shows how full of shit he is, because the devolution of policymaking and regulation of the environment, labor standards, social welfare, energy, education, and everything else since the Nixon administration proclaimed a New Federalism has been a huge victory for the conservative movement. What’s more, devolution and New Federalism are especially on-brand for Brooks, whose “reasonable conservative” schtick requires something more intellectually defensible than “tax cuts for the richest people in human history” or “go bomb brown people” or “how about fewer people get to vote,” the other policy cores of conservatism. If power had actually been flowing to Washington for decades, it would reflect quite poorly on the competence of people like David Brooks.

Fortunately, for Brooks, though perhaps unfortunately for the rest of us, this is just bullshit.

Brooks wants to perpetuate a victim narrative featuring the feds as villains, which requires him to ignore things like funding social programs through block grants, the Supreme Court’s efforts to wreck the Affordable Care Act, the rise of well-funded groups of state elected officials dedicated to suing the federal government, and the creation of a massive policy-entrepreneurial infrastructure through think-tanks and ALEC to thwart social and economic liberalism through state legislation. Many of the “smart young people” heading to New York and DC are in fact dedicating themselves to this devolution.

Brooks doubles down on this fictitious opposition because he wants to argue that there is a qualitative and moral difference between solving social problems through federal or local authority.

Localism is not federal power wielded on a smaller scale. It’s a different kind of power. The first difference is epistemological. The federal policymaker asks, “What can we do about homelessness?” The local person asks Fred or Mary what they need in order to have a home. These different questions yield different results.

This is true in a wholly banal sense, but falls apart completely on closer scrutiny. Both the federal and the local policymakers here are actually exploring possible action to reduce homelessness.

However, in most cases, the local policymaker is not asking homeless individuals what they need. The fundamental problem of localism is that most localities are able to use their powers defensively to exclude “undesirable” populations like the homeless. For 95% of local jurisdiction, homeless policy means “how can I convince Fred and Mary to leave town.”

The jurisdictions (large cities, mostly) who receive the homeless must therefore look beyond their own borders to solve problems that exceed their capacity, and that mostly means seeking to implement federally supported affordable housing policies.

If you’re still on board, we can skip ahead and ask what Brooks’s local solutions might look like.

There’s a legacy system, like a public school, a grocery store or an investment fund. Somebody breaks free from the system and creates an innovative alternative, like a charter school, an organic farm market or a crowdsource campaign.

Now here we arrive at the core of Brooks’s affection for the local. Policy “innovations” that all happen to reflect Brooks’s hostility to the public sector and enthusiasm for austerity. Note well that these paired alternatives reflect a “legacy” system that was set up to serve a broad public at a standard (observed in the breach to be sure) of inclusivity, and an “innovation” that serves a narrow base or rejects public responsibility entirely. Note, too, that state legislatures are involved here. These are the kinds of local initiatives that, strangely enough, don’t get preempted.

As Leo Linbeck of the Center for Opportunity Urbanism describes, the new innovators “announce the availability of the upgrade and then allow users to choose when to make the switch.” There’s a conversation between the legacy system and the innovator, as the former learns from and adapts to the alternative. Change happens through the conversation between old and new.

Or, change happens when the state legislature decides that funding your pension is less important than a tax cut and you get told to go pound sand. Or when your city responds to a massive hurricane by privatizing the entire school system. Or when Bill Gates or Mark Zuckerberg decide to throw a lot of money around to influence policy debates they really know nothing about, and cash-strapped cities agree in desperation to go along. Or when affluent whites want to avoid school desegregation. These are not conversations, except in the sense that ransom notes are conversations. And, while although I’m no New York Times pundit, I’m having a hard time understanding how change driven by Wall Street and Silicon Valley money squares with any sane understanding of localism.

There is a different division of labor for making change. As impact investor Deborah Frieze put it in a 2015 TEDx talk, change is led by Walk Outs. These are people who leave the legacy system and pioneer new alternatives. Then there are Illuminators. These are people who analyze and bring attention to the change that is now available.

Please make this stop. Unless you want to talk about these walkouts.

I’d highlight two other social roles. Elders are the city mothers and fathers who hold sway in the town because of their established positions. The Elders support the Walk Outs, make room for them and reform old systems. Then there are Network Entrepreneurs. They link the Walk Outs, who tend to be lonely, overworked and short-staffed. They help the Walk Outs build a support system and a way to exchange knowledge and care.

These terms are pulled from Professor I. Madeitup’s recent article in the Uranus Review of Urban Studies. Pause, too, for a minute and try to put these Ted Terms in a real-world context, like the charter school movement. Does Brooks expect anyone to believe that it’s the side that’s got hedge fund and tech money pouring into it that’s short-staffed?

Change in a localist world often looks like a renewal of old forms, which were often more intimate and personalistic than the technocratic structures of the past 50 years.

Never mind what we  just read about disruption and innovation. Localism is all about tradition and continuity and personalism. Here, perhaps we ought to pause to reflect on how in many places, “personalistic” governing means local housing authorities decline to enforce fair housing laws, meaning bigotry and prejudice can more easily affect who can rent where. And localism without civil rights enforcement means that “intimate” details like who you sleep with can affect your basic rights. Odd, LBGT civil rights protections are frequently preempted by state legislatures.

Localism stands for the idea that there is no one set of solutions to diverse national problems.

Of course not, which is why the American Legislative Exchange Council crafts templates for reactionary legislation tailored to the requirements of 50 state constitutions.

Instead, it brings conservatives and liberals together around the thought that people are happiest when their lives are enmeshed in caring face-to-face relationships, building their communities together.

OK. Here’s where David Brooks is showing himself to be even more completely full of shit. He’s made an entire career out of callow sociological observation about how people use geography to sort themselves according to political and cultural preferences (Brooks generally ignores how money factors into this sorting, but that’s par for the course). Now, however, when it comes time to face the implications of this for local government and politics, he is reduced to platitudes. He can’t face that the residents of affluent, white suburbs embrace anti-urban reaction. He can’t face the fact that the practice of localism amounts to resource-hoarding and exclusion. He can’t face the fact that suburban-rural coalitions of conservatives, in league with national policy entrepreneurs, are dedicated to hamstringing municipal governments and denying them the tools to deal with local problems.

What’s really going on, then? What Brooks and other conservatives are desperate to do is to find a way to champion and enact reactionary austerity and market orthodoxy in a climate where neither the White House nor Congress offer an appealing moral authority.