What would happen if the Supreme Court addresses inclusionary zoning?

A legal case involving zoning in Marin County, California may make it to the Supreme Court.

Back in May, authorities in Marin entered into a new voluntary compliance agreement with the U.S. Department of Housing and Urban Development to build new low-income housing outside areas where black or brown residents make up the majority. This is now the county’s second big push since 2010 to satisfy the government’s demand that it work on desegregating its affordable housing.

Fair housing is a challenge for Marin, an enclave of million-dollar bungalows across the Golden Gate Bridge from San Francisco. According to a nonprofit project called Race Counts, it has the highest racial disparities of any county in California. That’s in part because Marin County doesn’t want to build any housing. Homeowners here are at the forefront of NIMBY efforts to stop plans for new construction, whether they’re local, regional, or statewide.

The county’s iron grip on its land is the backdrop for a case that may soon appear before the U.S. Supreme Court. Back in 2000, two Marin County property owners, Dartmond and Esther Cherk, looked to split their undeveloped land into two single-family-zoned lots. As developers, they were liable to preserve some part of the property for affordable housing or pay into a low-income housing production fund. The fee was nearly $40,000; the Cherks sued.

The Marin County case may test the constitutionality of inclusionary zoning, a tool that local jurisdictions rely on to expand the supply of affordable housing, especially in tight housing markets. The court has expressed an interest in the case, which the justices may wind up using as a wedge to reshape property rights. It’s possible the inclusionary zoning ordinances—and local regulations more broadly construed—will not stand under the court’s scrutiny.

I’m on the record suggesting the Supreme Court would approve inclusionary zoning. While this piece suggests conservatives on the court might be spoiling to affirm property rights, the courts more broadly have helped develop plans to promote more affordable housing (think the Gautreaux case in Chicago or the Mount Laurel decision in New Jersey). Earlier decisions did not eviscerate property rights but they did suggest that the responsibility for housing was wider than a single community and its zoning. Additionally, having developers pay a fee into an affordable housing fund or provide some units of affordable housing as part of the larger project is common practice across American communities.

Beyond just the actions of Marin County and its own housing supply and population composition, the bigger issue is this: if a community or township or county restricts development and/or housing, it puts a bigger burden on other municipalities in the same metropolitan region to provide housing. And if many municipalities refuse certain kinds of development, more affordable housing ends up in a limited number of places that are (1) not necessarily located near jobs and (2) relatively lower-class. Housing is an issue best tackled by a whole metropolitan area (as are other issues including mass transit and transportation). More dispersed outcomes would likely lead to better outcomes across the region with the biggest loss being the communities that cannot easily remain as exclusive as they would like.

 

The suburban dimension to the Kavanaugh hearings

The testimony from Christine Blasey Ford and Brett Kavanaugh all revolved around a suburban high school social scene. Some suburban features of the matter at hand:

-Kavanaugh lived in Bethesda, Maryland. This community just northwest of Washington D.C. is largely white as well as very wealthy and educated. Ford also lived in the Washington D.C. suburbs.

-Kavanaugh described his summers in high school as involving working (having his own lawn mower business, working in construction) and getting together with friends. It sounds like they were able to drive themselves places. They had some measure of independence to engage in teenager activities. Ford described spending many summer days at the country club pool.

-Both Kavanaugh and Ford went to private schools in high school and highly ranked colleges (Yale and the University of North Carolina – Chapel Hill).

-The partying and drinking scene at people’s houses and other settings (like the beach) sounds like descriptions I have heard about parties in wealthier suburbs as well as occasional stories relayed to me from my own suburban setting.

-Kavanaugh described himself as working really hard at school even as he also came from a family with good jobs and resources. He also described participation in a number of high school activities including football.

-Kavanaugh had a decent-sized group of friends who hung out and knew each other fairly well (even if they have not kept up so well over the years since high school).

-A number of the physical settings mentioned in the hearing are common in suburbia. The alleged assault took place at a two-story suburban house in nearby Chevy Chase (also a very white and wealthy suburb) that probably does not stand out much from neighboring houses. Ford described running into Mark Judge at a local supermarket.

-Both Ford and Kavanaugh ended up in successful careers that might be considered befitting of their wealthier suburban origins: Kavanaugh has a law degree and is a judge and Ford has a Ph.D. and is a psychologist.

The descriptions of this suburban life from the allegation and the denial seem like they could come from any number of wealthier American suburbs. These are places where teenagers often have a good measure of independence and some access to vehicles, money, and alcohol (and/or drugs), the teenagers generally end up as successes, and some mischief or misdeeds are allowable for kids from good families (and perhaps even encouraged). On one hand, these are the sorts of places where teenage life can look pretty good. On the other hand, as the hearings imply, wealthier suburban life can go horribly wrong in ways that resources and success can not easily remedy.

Recommendations to help with SCOTUS’ innumeracy

In the wake of recent comments about “sociological gobbledygook” and measures of gerrymandering, here are some suggestions for how the Supreme Court can better use statistical evidence:

McGhee, who helped develop the efficiency gap measure, wondered if the court should hire a trusted staff of social scientists to help the justices parse empirical arguments. Levinson, the Texas professor, felt that the problem was a lack of rigorous empirical training at most elite law schools, so the long-term solution would be a change in curriculum. Enos and his coauthors proposed “that courts alter their norms and standards regarding the consideration of statistical evidence”; judges are free to ignore statistical evidence, so perhaps nothing will change unless they take this category of evidence more seriously.

But maybe this allergy to statistical evidence is really a smoke screen — a convenient way to make a decision based on ideology while couching it in terms of practicality.

“I don’t put much stock in the claim that the Supreme Court is afraid of adjudicating partisan gerrymanders because it’s afraid of math,” Daniel Hemel, who teaches law at the University of Chicago, told me. “[Roberts] is very smart and so are the judges who would be adjudicating partisan gerrymandering claims — I’m sure he and they could wrap their minds around the math. The ‘gobbledygook’ argument seems to be masking whatever his real objection might be.”

If there is indeed innumeracy present, the justices would not be alone in this. Many Americans do not receive an education in statistics, let alone have enough training to make sense of the statistics regularly used in academic studies.

At the same time, we might go further than the argument made above: should judges make decisions based on statistics (roughly facts) more than ideology or arguments (roughly interpretation)? Again, many Americans struggle with this: there can be broad empirical patterns or even correlations but some would insist that their own personal experiences do not match these. Should judicial decisions be guided by principles and existing case law or by current statistical realities? The courts are not the only social spheres that struggle with this.

Miami in front of the Supreme Court arguing for damages due to subprime loans

The Supreme Court just heard a case presented by the city of Miami that they should receive monies from banks because of the subprime loan crisis:

The story begins, Rugh said, in the late 1990s, when banks began marketing high-risk, high-fee home loans to black and Latino borrowers, especially those living in segregated neighborhoods. In a study published in 2015, Rugh and his co-authors examined 3,027 home loans in Baltimore (one of the few cities that has successfully settled a Fair Housing Act lawsuit against a bank) made between 2000 and 2008.When they controlled for basic loan characteristics such as credit score, down payment, and income, they found that black borrowers were channeled into higher-risk, higher-fee loans than were white borrowers with similar credit histories. These findings were compounded for black borrowers living in predominantly black neighborhoods: The study found that relative to comparable white borrowers, the average black borrower in Baltimore paid an estimated $1,739 in excess mortgage payments from the time the loan was made, a figure that was even higher for black borrowers in black neighborhoods…

In an amicus brief filed in support of Miami, a group of housing scholars argued that there is a direct link between the harm to borrowers documented by people such as Rugh and financial losses incurred by cities. Citing more than a decade of economic and sociological research from a variety of sources, Justin Steil, a professor of law and urban planning at MIT and one of the authors of the brief, explained, “the data is well established that foreclosures do lead to decreases in neighboring property values, which then lead to decreases in city revenues. Foreclosures,” he added, “also lead to more expenditures by the city in re-securing those properties, dealing with the vandalism, squatting, fires. And if the neighborhoods don’t recover, it just remains an ongoing problem for those communities to deal with.”

Supporters of the banks in this case say that if anything, leaders of cities like Miami encouraged the influx of credit into their municipalities. “I really think Miami wants to have this both ways,” said Mark Calabria, director of financial regulation studies at the Cato Institute. “If the banks weren’t doing business in Miami, they’d have a problem with that. It’s hard for me to believe that Miami would have been better off if Bank of America and Wells Fargo hadn’t been there.”

There are a lot of interesting aspects of this case, including the question of whether cities were harmed by loans made to individuals. But, there is little question in the sociological and additional social sciences literature: minority borrowers were steered toward loans with worse terms. (And other research suggests these worse terms for minorities extends to other areas including car loans and rental housing.)

Let’s say the court case goes in Miami’s favor and they receive some money. Two questions: (1) what do they do with this money? (2) What responsibility does the city have for not combating these loans in the first place and what are they responsible forward regarding disadvantaged neighborhoods? I hope one of the outcomes of this effort is not that cities can punt on their own policies and solely blame banks.

My prediction: courts and SCOTUS would rule in favor of inclusionary zoning

Opponents to inclusionary zoning laws are hoping their case makes it to the Supreme Court:

Developers in California are taking their fight against the state’s inclusionary zoning laws to the U.S. Supreme Court, just as cities across the nation are increasingly committing to similar laws to address affordable housing shortages. The California Building Association opposes the soon-to-kick-in law mandating that developers discount a percentage of units in new housing projects for low-income families. They claim it constitutes an illegal “taking” of private property by the government and hope that SCOTUS justices will agree with them

California’s Supreme Court rejected this argument in June, pointing to an affordable housing crunch of “epic proportions” as the compelling reason for the law. The supply of housing that families of modest income can actually afford is so low that advocates in San Francisco are considering suing the suburbs to intensify density.

But the California developers say that forcing them to build below-market-rate units as a condition of obtaining building permits amounts to extortion. Developers in Chicago are also making this argument, and have similarly filed a lawsuit against the city’s inclusionary zoning laws. In California, the homebuilders are also challenging the idea that there is a connection between new housing construction and affordability. In an interview with CityLab earlier this month, Steve Joung, CEO of Pangea Properties, a company that rehabs old buildings into new moderately priced housing, said there is a connection—but not the one that inclusionary zoning proponents would favor…

If SCOTUS agrees to review the California case, however, it could slow momentum around such plans. And if SCOTUS ends up agreeing with the developers, it could drastically change the current calculus around how to increase the supply of affordable housing.

Though it is hard to know whether this would actually reach the Supreme Court, I predict the developers will lose in court. I anticipate this result due to two reasons:

  1. The United States has few other mechanisms for addressing affordable housing even as it is a pressing issue. The free market clearly does not work. The federal government doesn’t want to provide much housing. Non-profits or community groups can only provide so many units. For decades, there has been little incentive for developers or communities to provide cheaper housing. In contrast, they can make more money with more expensive housing units and promote and/or protect a higher social status.
  2. Prior court cases have determined that developers can be made to provide other things to local governments in order to be able to build. For example, Naperville was a pioneer in the 1950s in having developers pay for some infrastructure (sewers, roads, etc.) and then several decades later asking for donations of land or cash to help build schools. Both decisions were fought in court by developers and the courts ruled in favor of the municipality. Additionally, other decisions have gone against exclusionary zoning practices that try to promote bigger lots and more expensive housing units.

This will be interesting to watch.

Affirmative action and equality of opportunity vs. equality of outcome

Since the Supreme Court recently decided to take on a case that involves using race in college admissions, I was intrigued to run across a new sociological study that suggests people with more education are not more likely to support affirmative action.

“I think this study is important because there’s a common view that education is uniformly liberalizing, and this study shows—in a number of cases—that it’s not,” said study author Geoffrey T. Wodtke, a doctoral student in the Department of Sociology at the University of Michigan…

Wodtke’s study finds that while being better educated does not increase the likelihood that whites and minorities approve of affirmative action in the workplace, it does increase the probability that they support race-targeted job training. “The distinction between those two policies is that one is opportunity enhancing and the other is outcome equalizing,” Wodtke said. “I think that some of the values that are promoted through education, such as individualism and meritocracy, are just much more consistent with opportunity enhancing policies like job training than they are with redistributive or outcome equalizing policies like affirmative action.”…

According to Wodtke, there could be a couple of reasons why more educated blacks and Hispanics are no more likely to support affirmative action in the workplace than are their less educated peers. “One possibility is that affirmative action programs may have the unintended effect of stigmatizing people who have benefited from them,” Wodtke said. “As a result of this stigmatization, people who have seemingly benefitted from affirmative action may just lose faith in the efficacy of these programs to overcome racial discrimination in the labor market.”

Another possibility is that people with more advanced educations, regardless of race, become socialized in such a way that their own support for more radical social policies is somewhat diluted, Wodtke said. “The data suggest that one ideological function of the formal educational system is to marginalize ideas and values that are particularly challenging to existing power structures, perhaps even among those that occupy disadvantaged social positions,” Wodtke said.

I assume Wodtke addresses this in his article: who then does support affirmative action and do supporters primarily see it as a way to improve their standing in society?

I like the way this is framed in terms of equality and this is a way that I talk about inequality in my introduction to sociology class: as a country (or within other institutions) we could aim for different kinds of equality. Equality of opportunity is a more common American response and suggests that it is the role of government and other institutions to try to offer a level playing field, particularly in education, but then individuals have choices about how they respond to that. If people don’t succeed or don’t take opportunities provided for them, it is their fault. Of course, this view is limited in that it is extremely individualistic and fails to account for structural issues (race, class, gender to start) that affect the ability of individuals to respond to these choices.

On the other hand, we could set up a system that is aiming more for equality of outcome where different individuals end up at similar places. In this view, people or groups may need extra resources or help to get to these more equal outcomes. To steal an idea from my wife, this could be the difference between being equal and fair: acting equally in the classroom could mean devoting the same amount of time to each student while being fair would mean devoting more time to the students who need a little more help. (Another way to put it: if you were the student who needed the extra help, would you rather it be an equal or fair classroom?) This reminds me of a discussion from last year about the education system in Finland where the goal was not to have the highest achieving students but rather to bring up the bottom group of students and have more proficient students overall. This may also take the form of a more comprehensive safety net or baseline standard of living where citizens are guaranteed a certain level of income, health care, and housing.

Having this larger discussion about equality of opportunity versus equality of outcomes, how far we would want to lean toward one or the other as a country, and what policy routes would help us achieve our stated goal might be more productive in the long run instead of having skirmishes in court about particular policies every few years.

Can you hear the people sing?

Brian pointed me to an article at the Chronicle of Higher Education about Lawrence Golan’s Supreme Court fight against copyright expansion:

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

Re-copyrighting works isn’t a technical or minor matter.  It has a huge effect of performing musicians like Golan:

When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan’s [University of Denver] ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

As Brian asked in his email pointing me to the article,

it sounds like US courts have always been willing to extend copyright protections…will there ever really be a "public domain" in the future for works published/created after World War I?

Unfortunately, the jury’s still very much out.