Reflections on the Persistence of Racial Segregation in Housing

REFLECTIONS ON THE PERSISTENCE OF RACIAL SEGREGATION IN HOUSING ALAN C. WEINSTEIN * I. ! I NTRODUCTION My reflection on Professor Roberts’ Sullivan Lecture poses two questions. First, how far have we come as a nation from the hyper-segregated housing patterns of the 1930s through 1960s that Professor Roberts described in her lecture? Regrettably, the answer appears to be not far at all. Further, we are today faced with a second form of hyper-segregation, one based on income rather than race. 1 Second, why have we made so little progress to date in addressing housing segregation? The simple answer here, of course, is that efforts to address the situation Professor Roberts describes have proved inadequate. 2 But why? While a comprehensive answer to that question is well beyond the scope of this writing, the author examines why one of the efforts has proven inadequate: the attempts to combat “exclusionary zoning.” 3 II. ! R ESIDENTIAL S EGREGATION T HEN AND N OW Professor Roberts’ article notes that, using one common measure of racial segregation, the “isolation index,” which measures the extent to which blacks live in neighborhoods that are predominantly black, “[t]he spatial isolation of African-Americans in Chicago ‘increased from only Copyright © 2016, Alan C. Weinstein. * Professor of Law, Cleveland-Marshall College of Law/Professor of Urban Studies, Maxine Goodman Levin College of Urban Affairs, Cleveland State University. 1 See, e.g. , Sean F. Reardon & Kendra Bischoff, Growth in the Residential Segregation of Families by Income, 1970–2009 , US2010 PROJECT (Nov. 2011), https:// s4.ad.brown.edu/Projects/Diversity/Data/Report/report111111.pdf [https://perma.cc/T4RGXW4F] (concluding that segregation of families by income has grown significantly in the last 40 years); Paul A. Jargowsky, The Architecture of Segregation: Civil Unrest, the Concentration of Poverty, and Public Policy , CENTURY FOUND. 1 (Aug. 9, 2015), https://s3-us-west-2.amazonaws.com/production.tcf.org/app/uploads/2015/08/07182514/Jargowsky_ ArchitectureofSegregation-11.pdf [https://perma.cc/XSX2-V7LG] (finding “a dramatic increase in the number of high-poverty neighborhoods” and showing that the “number of people living in high-poverty ghettos, barrios, and slums has nearly doubled since 2000, rising from 7.2 million to 13.8 million”). 2 See Reardon & Bischoff, supra note 1, at abstract. 3 See infra Part IV. 60 CAPITAL UNIVERSITY LAW REVIEW [45:59 10% in 1900 to 70% thirty years later.’” 4 The situation Professor Roberts describes has changed little over the ensuing decades. Based on data from the US2010 Project, the spatial isolation of African-Americans in Chicago had increased to 89.9% by 1980. 5 While the isolation index for African-Americans had declined to 79.9% by 2010, 6 that figure still represents a relative increase in isolation for African-Americans of over 14% when compared to the 1930 figure noted by Professor Roberts. 7 Another commonly used measure of segregation in housing is the dissimilarity index. 8 As explained by the US2010 Project: The dissimilarity index measures whether one particular group is distributed across census tracts in the metropolitan area in the same way as another group. A high value indicates that the two groups tend to live in different tracts. D[issimilarity] ranges from 0 to 100. A value of 60 (or above) is considered very high. It means that 60% (or more) of the members of one group would need to move to a different tract in order for the two groups to be equally distributed. Values of 40 or 50 are usually considered a moderate level of segregation, and values of 30 or below are considered to be fairly low. 9 4 Dorothy E. Roberts, Crossing Two Color Lines: Interracial Marriage and Residential Segregation in Chicago , 45 CAP. U. L. REV. 1, 10–11 (2017) (citing DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 24 (1993)). The isolation index is the percentage of same-group population in the census tract where the average member of a racial/ethnic group lives. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 23 (1993). It has a lower bound of zero (for a very small group that is quite dispersed) to 100 (meaning that group members are entirely isolated from other groups). See id. Thus, the index measures “the extent to which minority members are exposed only to one another . . . .” Douglas S. Massey & Nancy A. Denton, The Dimensions of Residential Segregation , 67 SOC. FORCES 281, 288 (1988); Margery Austin Turner & Judson James, Discrimination as an Object of Measurement , 17 CITYSCAPE: J. POL’Y DEV. & RES. 3, 3 (2015) (describing how discrimination in housing is measured). Note, however, that this index is “affected by the size of the group—it is almost inevitably smaller for smaller groups, and it is likely to rise over time if the group becomes larger.” Residential Segregation , DIVERSITY & DISPARITIES, https://s4.ad.brown.edu/projects/diversity/ segregation2010/Default.aspx [https://perma.cc/SK8X-D9QB]. 5 Chicago City , DIVERSITY & DISPARITIES, https://s4.ad.brown.edu/projects/diversity/ segregation2010/city.aspx?cityid=1714000 [https://perma.cc/LK46-3DSR]. 6 Id. 7 See Roberts, supra note 4, at 10–11. 8 See Chicago City , supra note 5. 9 Id. 2017] RACIAL SEGREGATION IN HOUSING 61 Data from Chicago for the dissimilarity index for African-Americans mirrors that for the isolation index; in 1980, the dissimilarity index for African-Americans ranged from 90.8% to 88.8%, depending on the racial group comparator 10 and the index declined to between 83.1% and 80.8% by 2010. 11 In comparison, the dissimilarity indices for the non-African-American racial groups—Asians, Hispanics, and Whites—were significantly lower, ranging from a high of 67.3% for Asian-Hispanics in 1980 to a low of 40.8% for Asian-Whites in 2010. 12 The pattern of racial segregation seen in Chicago is not unique. 13 When researchers William H. Frey and Dowell Myers examined data from the 2000 Census, 14 they found that 143 of 318 Metropolitan Areas (44.97%) had Black-White dissimilarity indices of at least 60%, meaning that they fell into the “very high” category. 15 Further, only 80 of the 318 (25.16%) had Black-White dissimilarity indices of 50% or below, meaning that they had low to moderate dissimilarity. 16 Perhaps most notably, none of the 318 had a dissimilarity index in the “fairly low” category of 30% or below. 17 10 The 1980 dissimilarity index was 90.8% between African-Americans and Asians, 90.6% between African-Americans and Whites, and 88.8% between African-Americans and Hispanics. Id. 11 The 2010 dissimilarity index was 83.1% between African-Americans and Asians, 82.5% between African-Americans and Whites, and 80.8% between African-Americans and Hispanics. Id. 12 The only dissimilarity index that showed significant improvement between 1980 and 2010 was White-Asian, declining from 51.4% to 40.8%, a relative decline of just over 20%. Id. The other indices barely changed during the same period: White-Hispanic went from 61.4% to 60.9% and Asian-Hispanic from 67.3% to 66.6%. Id. 13 See Camille Zubrinsky Charles, The Dynamics of Racial Residential Segregation , 29 ANN. REV. SOC. 167 (2003), https://www.jstor.org/stable/pdf/30036965.pdf [https://perma.cc/9DFV-PUL3] (providing a comprehensive review of the dynamics and consequences of racial residential segregation). 14 Frey and Myers issued a report that accompanied the release of detailed racial segregation indices for the 318 U.S. metropolitan areas by CensusScope. William H. Frey & Dowell Myers, Neighborhood Segregation in Single-Race and Multirace America: A Census 2000 Study of Cities and Metropolitan Areas 1 (Fannie Mae Found., Working Paper, 2002), http://www.censusscope.org/FreyWPFinal.pdf [https://perma.cc/L6ML-8PPE]; United States Segregation: Dissimilarity Indices , CENSUSSCOPE (2000) [hereinafter CENSUSSCOPE], http://www.censusscope.org/us/print_rank_dissimilarity_white_black.html [https://perma.cc/86M7-V5BB]. 15 See CENSUSSCOPE, supra note 14. 16 See id. 17 See id. Note, however, that because a number of the smaller metropolitan areas have a small African-American population, CensusScope cautions: “When a group's population is small, its dissimilarity index may be high even if the group's members are evenly ( continued ) 62 CAPITAL UNIVERSITY LAW REVIEW [45:59 Compounding these long-standing patterns of racial segregation is the more recent growth in spatial segregation by income. 18 Sean Reardon and Kendra Bischoff report: As overall income inequality grew in the last four decades, high- and low-income families have become increasingly less likely to live near one another. Mixed income neighborhoods have grown rarer, while affluent and poor neighborhoods have grown much more common. In fact, the share of the population in large and moderate-sized metropolitan areas who live in the poorest and most affluent neighborhoods has more than doubled since 1970, while the share of families living in middle-income neighborhoods dropped from 65 percent to 44 percent. The residential isolation of the both poor and affluent families has grown over the last four decades, though affluent families have been generally more residentially isolated than poor families during this period. Income segregation among African Americans and Hispanics grew more rapidly than among non-Hispanic whites, especially since 2000. These trends are consequential because people are affected by the character of the local areas in which they live. The increasing concentration of income and wealth (and therefore of resources such as schools, parks, and public services) in a small number of neighborhoods results in greater disadvantages for the remaining neighbor hoods where low- and middle-income families live. 19 Their finding that “[i]ncome segregation among African Americans and Hispanics grew more...