Conservatives Are Nudging The Supreme Court to Dismantle Affordable Housing Policies

Originally published in The Intercept on June 25, 2019.
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WHEN IT COMES to conservatives and the U.S. Supreme Court, abortion and labor rights are often considered among their prime targets. Brett Kavanaugh’s ascension to the court last fall, though, opened the road for a host of other challenges for which conservatives have quietly been laying the groundwork for years. This month, the Pacific Legal Foundation, a conservative law firm based in California, made moves on one of those fronts, asking the Supreme Court to take up a case challenging the constitutionality of inclusionary zoning — a popular tool cities and states employ to increase affordable housing and promote residential integration.

Inclusionary zoning generally works by requiring real estate developers to reserve a certain number of units in new housing complexes for tenants who live on more modest incomes; some jurisdictions also allow developers to alternatively pay a fee so the city can construct more affordable housing elsewhere. Conservatives argue that the policy effectively violates a provision of the Fifth Amendment that says private property cannot be taken without just compensation.

This is the Pacific Legal Foundation’s third attempt to bring an inclusionary zoning challenge before the Supreme Court. Its previous efforts, in 2015 and 2017, were both dismissed, but legal experts say that with Kavanaugh now seated on the high court, it is more likely the case will find an audience — and be resolved in favor of conservatives.

The law firm is representing an elderly couple — Dart and Esther Cherk — in Marin County, California, who wanted to divide their 2.79 acres of land into two developable lots. They hoped to sell half of their land to supplement their retirement. In 2000, they applied for a permit, and in the time it took to get their permit, the local law changed such that the couple now had to pay Marin County $40,000 as an affordable housing fee to proceed. They paid, but then demanded a refund, calling the payment unconstitutional.

“Rather than respect property rights and allow a free market in land use, Marin County (and other California cities) have concocted counterproductive ‘affordable housing’ programs by which they collect fees from people like the Cherks (who are actually trying to create new building lots) and stuff it into government coffers for government programs that will allegedly make housing more ‘affordable,’” wrote Larry Salzman, a Pacific Legal Foundation attorney leading the case.

Inclusionary zoning is a land-use policy, first developed in Montgomery County, Maryland, in the 1970s, as a way to foster mixed-income communities. Since it was enacted, the inclusionary zoning policy in Montgomery County has been used to build more than 11,000 new affordable units. By the end of 2016, according to Grounded Solutions Network, 886 jurisdictions in 25 states and Washington, D.C., had also adopted inclusionary zoning policies. And it’s still spreading: This past spring, the New Orleans City Council passed a mandatory inclusionary zoning law to boost affordable housing in the city’s most desirable neighborhoods.

Some real estate developers and economists bemoan inclusionary zoning, arguing that it actually decreases housing affordability by making it more expensive to build market-rate units. This is a concern leaders take seriously, especially in places like California, which is grappling with soaring housing costs driven largely by a scarcity of available units. Still, other experts say that fear is overblown, or can be mitigated with careful program design.

THAT THE PACIFIC Legal Foundation is trying to eliminate a legal tool used by policymakers to promote residential diversity comes as little surprise to those in the civil rights community. The Pacific Legal Foundation has challenged a host of liberal policy ideas in court, including affirmative actionthe Voting Rights Actbilingual education, and school integration.

Their case, as Salzman explains, is built on the idea that Marin County’s inclusionary zoning program violates Supreme Court precedent that protects property owners from being forced to pay extortionate permit fees. Since the couple splitting their lot wouldn’t be exacerbating the local affordable housing crisis — and arguably would be helping to ameliorate it since they’d be increasing supply in an area that desperately needs more housing — “they can’t lawfully be charged a fat fee to solve the region’s so-called ‘affordable housing’ problem,” argues Salzman.

Thomas Silverstein, a fair housing attorney at the Lawyers’ Committee for Civil Rights Under Lawsaid it’s likely the Supreme Court will eventually take up an inclusionary zoning case, even if not this one. “It seems it’s just part of Pacific Legal Foundation’s agenda to be consistently developing a pipeline of potential challenges, bringing them up and bringing them up, and hoping one day they’ll crack through,” he said.

In 2015, Justice Clarence Thomas signaled his interest in taking up a future inclusionary zoning case, writing a concurrence that stated the inclusionary zoning case they were denying to review “implicates an important and unsettled issue under the Takings Clause.” Kavanaugh’s record on property rights and the Takings Clause is more limited, in part because he was previously on the bench at the D.C. Circuit, where those kinds of cases came up far less often. Still, his notorious record on civil rights was flagged by the NAACP Legal Defense and Educational Fund at the time of his nomination. Last summer they warned that confirming him to the Supreme Court “would threaten the government’s ability to use race to promote diversity and halt discrimination.”

This is the final week of the Supreme Court’s current session, and the court won’t decide whether to hear the zoning case until it reconvenes in the fall. The court’s decision could rest on whether it finds the facts of the case to be representative of questions around inclusionary zoning writ large, Silverstein noted. On the one hand, the Pacific Legal Foundation picked a case with a relatively sympathetic set of plaintiffs; it’s not some rich real estate developer building a high-rise tower but rather a couple looking to retire who would not be hurting Marin County’s affordable housing crisis by splitting up their land. “I think the flip side of this is, you could also imagine the court looking at these facts and saying this is a really unique situation, and if we’re going to take up the issue of whether inclusionary zoning is constitutional, it makes more sense to do it when the facts in front of us are more typical,” Silverstein said.

A KEY CONSTITUTIONAL question for the court, Silverstein said, will be whether inclusionary zoning amounts to a constitutional regulation of how property is used or an unconstitutional taking of property from a property owner. Another question will be whether past legal precedent applies to legislative ordinances, as opposed to ad hoc or administrative decisions. The three big Supreme Court cases that the Pacific Legal Foundation is basing its new argument on — Dolan v. City of Tigard, Nollan v. California Coastal Commission, and Koontz v. St. Johns River Water Management District — were all centered on administrative decisions.

In the 5-4 Koontz decision authored by Justice Samuel Alito in 2013, the U.S Supreme Court ruled that a water management district in Florida had imposed illegal conditions on an entrepreneur’s application to build a shopping center. The proposed shopping center was to be located on a swath of wetlands, and the water management district said the entrepreneur could either reduce the size of his project or spend money on wetlands restoration efforts to mitigate the project’s environmental impacts. The entrepreneur refused, calling the conditions unreasonable, and the Supreme Court agreed.

In the dissent, Justice Elena Kagan objected to the idea that a requirement to pay money to repair public wetlands amounts to a taking of private property, and noted that the court has already held that taxes do not amount to a violation of the Fifth Amendment. “Once the majority decides that a simple demand to pay money—the sort of thing often viewed as a tax—can count as an impermissible ‘exaction,’ how is anyone to tell the two apart?” she wrote. “In short, the District never made a demand or set a condition—not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law. The District’s only hard-and-fast requirement was that Koontz do something—anything—to satisfy the relevant permitting criteria.”

Pacific Legal Foundation appears to be modeling its legal argument around the decision in Koontz. The group “has been very careful to frame their cases around a fee; they want it to seem as much like Koontz as possible, where it’s considered an unconstitutional fee from the start,” said Silverstein. “But if you say instead that there’s a requirement to provide affordable housing, and if you don’t want to provide affordable housing, you can get out of that obligation by paying a fee, that makes their case look much less like Koontz and more like a land-use regulation that might be permitted under Euclid v. Ambler, which effectively upheld zoning. If a fee is seen instead as an opt-out, it’s almost like you’re doing a nice thing for the property owner.”

Even as conservatives have raised constitutional challenges to inclusionary zoning in recent years, cities and states have not held back on moving forward with inclusionary zoning out of fear of their laws being struck down on the federal level. A Supreme Court dismissal of the new petition would reinforce the message that the proactive steps many jurisdictions have already taken to use inclusionary zoning are lawful and legitimate. Alternatively, if the court did take up the case and ruled in Marin County’s favor, that would also send a strong signal that jurisdictions can continue to pass inclusionary zoning mandates.

“The problem,” said Silverstein, “is we have a Supreme Court that is very skewed toward the petitioners in this case, and there’s a real risk they would decide the case the other way and upset the applecart.”

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New York City Tackles School Segregation

Originally published in The American Prospect on December 9, 2015.
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Six decades after the Supreme Court ruled that segregated schools are “inherently unequal,” integration may finally be coming to New York City.

With 1.1 million students, New York City is home to one of the nation’s largest public school systems; it’s also one of its most economically and racially segregated.

For decades, nobody in the city besides a few die-hard activists seemed to care much. Over the past year and a half, however, a perfect storm of provocative research studiesnews reportsrezoning fights, and public advocacy have forced public officials to take notice.

Last month the New York City Department of Education announced that at the start of the 2016-2017 school year, seven public elementary schools will participate in a new pilot program designed to diversify student bodies. Each of the seven schools will be permitted to set aside a certain percentage of seats to give priority enrollment to various student populations, including English language learners and those living in poverty.

Though some advocates have expressed concern that the pilot program is too little, too late, there are signs that that even bigger desegregation efforts are yet to come.

This pilot represents the first concrete step taken by New York City Mayor Bill de Blasio’s administration towards desegregating the city’s public education system. Despite de Blasio’s reputation as a progressive, his administration has so far failed to tackle the segregation issue head-on.

As an example of his administration’s half-measures, earlier this fall, New York City Schools Chancellor Carmen Fariña suggested that instead of desegregating schools in poor neighborhoods, public schools could diversify by pairing students in wealthy schools with kids in low-income schools to share resources, meet in person, and become pen pals. Fariña also said school diversity could be promoted by teaching students about world religions in their classrooms.

These proposals drew fire from school equity advocates, but de Blasio defended them, and suggested that promoting school choice and high-quality schools are more pressing priorities than desegregation. Critics faulted de Blasio for perpetuating the policies of his predecessor, Michael Bloomberg, who also did little to tackle segregation.

“The whole idea of us voting Bill de Blasio into office, with his mixed family, was for him to usher in a new agenda—a progressive agenda,” says Jose Vilson, a New York City math teacher and prominent social justice activist. “But what we’ve seen is that he still has to deal with the old politics defined by Giuliani and Bloomberg.”

De Blasio also took heat for failing to follow up on the few steps toward integration that Bloomberg’s administration did take. At the start of the 2013-2014 school year, P.S. 133, an elementary school located in a gentrifying part of Brooklyn, unveiled the city’s first-of-its kind admissions program to reserve spots for English language learners and low-income students. Bloomberg’s then-school chancellor, Dennis Walcott, hailed the innovative program as a potential model for other schools.

But de Blasio failed to follow through once in office, and officials within his administration told principals who wanted to establish diverse admissions policies that the city lacked the legal authority to approve their requests. School equity advocates cried foul—pointing to federal Education Department guidance posted in 2011, which affirmed school districts’ legal right to promote diversity through admissions.

Now that de Blasio has come around, advocates make sure to point out that they had been right all along. David Tipson, the executive director of New York Appleseed, an organization that promotes equity in schools, says that the de Blasio administration’s recent pilot announcement “represents a complete and utter rejection of those bogus legal arguments” that they had used for so long.

MOST SCHOOL INTEGRATION ADVOCATES have hailed the seven-school pilot program, but warn that de Blasio’s one-school-at-a-time approach has pitfalls. There are more than 1,700 public schools in the city, and if desegregation efforts are not carefully coordinated, then desegregating one school can have the adverse effect of exacerbating segregation at another.

To really foster school integration, advocates say, the city needs to adopt what’s known as “district-wide controlled choice”—a desegregation model used in other cities, such as Cambridge, Massachusetts, and Champaign, Illinois—that aims to balance parental choice with diversity. Parents rank their top school choices within a particular district, and then the district assigns students in a way that accounts for those preferences while also ensuring that each school has an integrated student body. (In New York City, this would mean assigning students within the system’s 32 separate school districts.)

“There’s always a fear with incremental change that the most recent increment is your last—that maybe this is as much as we’ll ever get, but I think this [pilot announcement] is really just breaking the seal,” says Tipson, who notes that this is the first time the de Blasio administration has acknowledged that gentrification must be managed at the school level, and not just through housing policy.

The school integration debate will only intensify in New York City, where gentrification and school overcrowding are both growing issues. This past May, the New York City Council passed a new law known as the School Diversity Accountability Act that requires the city to annually publish detailed student demographic data and make clear what steps it has taken to advance school integration. The first report generated by the new law will be published at the end of December.

“I think the pilot program is a good first step, and I hope more schools will do it, but I also agree that in a city with 1,700 schools we have a lot more steps to take,” says City Council member Brad Landers, a co-sponsor of The School Diversity Accountability Act. “We have to keep pushing forward, and the most important and most immediate next steps need to be moving towards district-wide diversity.”

Julie Zuckerman, a principal at Castle Bridge, a Washington Heights-based elementary school participating in the diversity pilot, says when she first founded Castle Bridge six years ago, nobody was interested in discussing integration. She tried to get the city’s permission to prioritize diversity in their admissions lottery, but officials were not supportive. Now under the pilot program, Castle Bridge will be able to ensure that at least 60 percent of its student body qualifies for free or reduced-price lunch, and that the school educates at least 10 percent of kids with incarcerated parents.

Zuckerman says she also plans to build off the momentum from this pilot program to push for district-wide solutions. She currently serves alongside a half dozen other principals on a city superintendents’ advisory panel, where she intends to make the issue a priority.

“This [pilot] is not even a drop in the bucket, and yet it’s the first acknowledgement by the city that it doesn’t have to be the tail wagging the dog on gentrification,” she says. “Let’s harness gentrification instead of being determined by it.”

The seven schools in the pilot program all happen to be progressive schools—that is, institutions that test innovative, often experiential curricula in ways that appeal to middle-class parents. Though many of the progressive schools started out with diverse student populations, teachers and administrators say they have recognized that their school demographics have started to shift in recent years, as more affluent families apply, and poorer families find they can no longer afford to live in the city.

Jia Lee, a teacher at The Earth School, another diversity pilot participant, notes that over the last few years, her school has grown “much more white and middle class” and that it no longer feels “reflective of the community.” She says the school’s new set-aside policy, which will reserve 45 percent of its seats for low-income students, will help ensure that their school can educate a diverse student body in the years to come.

 

ONE OF THE BIGGEST POLITICAL CHALLENGES for advocates of district-wide controlled choice is garnering support from parents who send, or intend to send, their children to public schools that already have mostly white and affluent students. Last month, de Blasio told Chalkbeat NY: “You have to respect families who have made a decision to live in a certain area oftentimes because of a specific school.” In effect, he suggested that given the investments parents have already made to send their kids to certain schools, it would be wrong to try and modify those institutions after the fact.

His comments immediately garnered pushback. “Is it not disrespectful, in fact, to tell low-income families that they can’t go to a certain school because they couldn’t buy a several million-dollar co-op?” wrote Donna Nevel, a local educator and activist in an open letter published in The Huffington Post.

Experts say that the set-aside policies will work to prevent more schools from “slipping”—a term used to denote formerly diverse schools that have become heavily gentrified. If fewer schools “slip,” then there may be less political opposition to larger, systemic policy change.

Dao Tran, a parent of a third grader at Castle Bridge, says that while she doesn’t believe desegregation is something that can be solved school by school, she thinks advocates “have to start by showing certain integrated models that work.” In that sense, Tran believes the success of this pilot program could help to persuade skeptical parents.

“To me, these are all steps along the way, and I agree if we just stopped with this pilot then we have not done anywhere near enough,” says Landers, of the City Council. In a statement, the city’s education department also said the pilot program “remains one piece of a larger effort” to expand diversity across city schools.

The next step, advocates say, will be building a political consensus behind real change.

“It’s almost easier to talk about police brutality than it is to talk about school integration,” says Landers, noting that a swirl of of guilt, resignation, parents’ concerns for their own kids, and racism all work together to make school segregation a tough issue for people to reckon with.

But Ujju Aggarwal, a New York City education researcher and activist, voices optimism. In her 15 years in the district, Aggarwal says she has never seen school integration discussed so broadly until now.

“What’s increasingly clear is that this city has to take a stand respond to the crisis of inequality and segregation that is particularly pronounced in our education system,” she says. “I’m hopeful that with the increased visibility of this issue the city will respond in a more systemic way.”