Deciding Who Can Stay – Local Preference in Affordable Housing
Professor Nicholson's article analyzes the role that a preference for local residents plays and should play in the allocation of affordable housing. Commentators have pointed out that local preference, when used in communities experiencing gentrification where people of color make up a majority of the population, can help low-income residents avoid displacement without the risk of discriminating by race. This article adds another reason to consider local preference: fiscally constrained cities tempted to pursue gentrification for revenue will find producing affordable housing particularly difficult. It also adds another way to target local preference appropriately: a better policy argument for local preference to prevent displacement exists where naturally occurring affordable housing is prevalent.
The debate around local preference raises larger questions about community and local democracy. Should leaders serve residentially defined communities? Or does a more useful conception of “community” transcend geographic boundaries? Do policies that reinforce geographic boundaries help or hurt local democracy and economic opportunity? The exploration of these questions will help illuminate the circumstances in which a local preference to affordable housing is beneficial and, more broadly, the legal considerations involved in the discussion of “place-based” versus “people-based” approaches to development.
Given the promise of local preference in the right circumstances, there is more that state and federal housing law can do to facilitate the proper use of this policy. As an example, this article calls for reform in how affordable housing is defined under Massachusetts law.
Segregation Autopilot: How the Government Perpetuates Segregation and How to Stop It
We live in a racist ecosystem, and its defining feature is racial segregation. One of the biggest offenders is the federal government, which perpetuates racial segregation through its investments and regulatory decisions. Set to autopilot, the federal government routinely reinforces segregation. The complexity of segregation necessitates sophisticated legal tools to detect and undo it. Professor Abraham's article takes on that system by examining the government’s existing legal obligation to consider race in its decision-making and how that duty can be leveraged to reduce segregation.
Unknown to many, the federal government—and its state and local grantees—has a statutory duty to consider race in its housing and community development programs. The “affirmatively further fair housing” or “AFFH” mandate is an overlooked provision of the Fair Housing Act. It requires every federal agency to take affirmative steps to undo segregation in administering housing and community development, including while regulating private financial institutions.
This article examines the full scope of the government’s legal duty. Cognizant of segregation’s persistence and far-reaching effects, this article identifies and evaluates how to construct an administrative law scaffolding to implement the AFFH mandate across federal agencies. It concludes with a set of prescriptions to build the legal framework necessary to detect and deconstruct investments and regulatory actions that reinforce racial inequality. As a starting point, the federal government must promulgate and normalize procedures to detect and deconstruct its segregation-reinforcing activities if it has any chance of reducing neighborhood segregation.