Mapping Out Our Future: What Shall We Seek in Fair and Affordable Housing

Keynote Address to 5th Annual Meeting of JALSA by David Harris, Managing Director of the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School (Jan. 7, 2007)

It’s an honor but a bit disarming to be billed as today’s Keynote speaker. As one who always shies away from sitting at the head of table and insists on opening remarks with self-deprecating humor, “keynote” seemed almost dire. I am calmed by the fact that I am speaking to folks share my values and perspectives on the law and social action. I will never be as fervent and compelling as Sheila Decter [executive director of JALSA] and join you in recognizing Aaron Gornstein [executive director, Citizens Housing and Planning Association], whose advocacy on behalf of affordable housing is a matter of public record and who has, over the years, worked tirelessly to promote fair housing – with CHAPA itself serving as the Fair Housing Center’s original fiscal agent.

The topic for today, “Mapping Out Our Future: What Shall We Seek in Fair and Affordable Housing,” was chosen before the election, with the hope that we would be where we are today – embarking on a new political era defined by the prospect of progressive change. I am going to touch on some fair housing related matters, but will not stray too far into the area of affordable housing in Aaron’s presence.

I must begin by emphasizing that fair housing and affordable housing while related, are quite different matters. From a legal as well as ethical perspective, fair housing transcends affordability; it is a universal principle with a firmer legal mandate that applies to all housing choice. Although there are times we may be inclined to conflate fair housing and affordable housing in order to facilitate dialogue, this can be a dangerous tactic, for it tends to mask the continued role of discrimination as an additional limitation on opportunities for some residents. Better to see and understand affordable housing as one element in fair housing; as one, but by no means the only, path to providing equal housing opportunity for people of color, families with children, persons with disabilities and other groups subjected to discrimination in the marketplace.

I was painfully, if humorously, reminded of the dangers a couple of years ago when I participated in a discussion on desegregating our suburbs as part of a national conference on regional equity. The panel included a long time participant in the Mt. Laurel case in New Jersey that required the distribution of affordable housing units into the suburbs. The decision has been weakened some over the years, but this panelist said with pride that before its decline, the decision had been effective in opening the suburbs to the poor elderly, persons with disabilities and families with children. He added, with no apparent self-consciousness, that its only failing was in not providing more opportunities for people of color.

The lesson I took from that experience, and it is one that applies directly to us in Massachusetts, is that programs designed specifically but singly for affordability, whether Mt. Laurel of Chapter 40B, will not, in and of themselves, address the problems of racial segregation unless they are specifically mandated to do so. Don’t misunderstand me. On a day we gather to honor Aaron Gornstein I am not about to say affordability doesn’t matter. Nor would I ever argue that we as a Commonwealth should not do more to ensure every resident has access to affordable housing. What I am saying, however, is that when it comes to fair housing, an adequate supply of affordable housing is necessary, even essential, but it is far from sufficient in remedying discrimination, either individual or systemic.

I recently read the Housing Goals and Strategies for the Patrick/Murray Administration crafted by the Housing Transition Working Group. It demonstrates determination on the part of the administration to seek and listen to the input of a broad spectrum of people involved in and knowledgeable about the critical issues facing the Commonwealth. But it has a serious shortcoming. I cannot help but recall a joke I often tell about the truant zoology student who the day before the final exam asked a friend who had taken the class the year before what the professor usually asked. He always asks about worms, the friend said; learn everything you can about worms. The truant stayed up all night studying and entered the exam room exhausted but confident. He fell from his chair when he looked at the question: Tell me everything you can about elephants. Well, we all know how creative we can be when overtired and our fellow was fortunate to have one of those flashes of genius. He began writing: elephants are very large animals with several unique features, including tusks, large ears and a long trunk that looks like a worm and worms…

For many of us in the fair housing world race is both the proverbial elephant in the room that everyone wants to avoid seeing as well as the worm in the apple. To be sure fair housing was one of the ten points covered by the goals and strategies document, with calls to improve enforcement of existing laws and give “consideration” to hiring a Director of Fair Housing within DHCD. This is, of course, an improvement over the tokenism embodied in the well-intentioned but mid-level fair housing policy staff position created by the Romney administration.

I know I suffer from the rising expectations syndrome with respect to our new administration. We expect so much from those in whom we believe and we must always take care not to demand too much. But I maintain that we must find a way to shift civil rights from the periphery to the center of public policy and further, that the failure to do so will thwart the Patrick/Murray administration’s commitment to, quote, “once again open the door to economic security and the American dream for all our residents.”

As a member of the CHAPA board I thoroughly endorse the call for the restoration of a Cabinet level housing secretary. But while my work in the field has brought me directly into the realm of housing policy, I entered the fair housing arena from the civil rights perspective and I retain the conviction that fair housing is a civil right.

Thus, while I endorse the need to create a proactive and empowered fair housing department within DHCD, there is a critical need to consider the civil rights implications of all state policies from the top down. Such concerns must not be left as the step child of individual agencies, subject to the exigencies of the moment. Neither should they be left vulnerable to turf battles or silo mentality. I have no doubt that our governor has an understanding of and commitment to the principles of civil rights and that he will appoint people who share these qualities. But he of all people must know that in the heat of political and fiscal wrangling, cabinet members are likely to defend their particular programmatic areas rather than principles. Therefore, I call upon the Governor Patrick to create a cabinet level civil rights position to oversee enforcement of our civil rights laws and monitor performance across departments. If not a cabinet member, then a senior member of the Governor’s staff whose sole mission is to promote, establish and maintain an effective civil rights platform across the administration.

I am not necessarily suggesting the creation of a new bureaucracy, although I will never apologize for seeking the power and the money to enforce civil rights laws. Last year’s struggle to pass the data collection bill notwithstanding, we have the laws we need. But we need to understand what those laws require. Most civil rights laws and their accompanying regulations contain two complementary aspects, one for enforcement and another concerned with, dare I say, affirmative action. Title VIII, for example, includes an incredible enforcement capacity as well as very specific requirements that public policies affirmatively further fair housing. What is sorely lacking in fair housing and civil rights generally is a commitment to do both.

If the new administration follows through on the recommendation, to, and I quote -- “support the development of affordable housing and neighborhood revitalization efforts near transit stations…while focusing on strategies to prevent displacement of low and moderate income residents living near such stations” it must do so with a focused eye on the civil rights implications of those strategies. That same lens must be used for all state policies and affirmative action – meaning the deliberate and determined effort to remove impediments and correct inequities through myriad incentives and disincentives by which the state operates. I prepared these remarks before reading today’s interview with newly appointed Secretary O’Connell, which gave me little comfort about the commitment to the populations about which we care. I was reminded, however, that we need to spend as much time educating our journalists about the right questions as our public officials about the right answers!

As many of you are aware, I recently became managing director of the Charles Hamilton Houston Institute for Race and Justice. The institute, named after one of the truly remarkable legal minds and social activists of American history, was founded in 2005 by Charles Ogletree, Climenko Professor of Law at Harvard University. I encourage all of you to visit the institute’s web site at Charleshamiltonhouston.org, to learn about the center and Houston himself. Suffice it to say that legal scholars and historians unanimously recognize Houston as the architect of the civil rights struggle, which began, in large part, at Howard University Law School. With the intention of one day overturning the “separate but equal” doctrine that justified segregation, Houston built and argued important Supreme Court cases consciously designed to chip away at separatism. For example, in the 1936 case, Pearson v. Murray, which Houston argued with Thurgood Marshall, the Court determined that the University of Maryland could not exclude African Americans. (It had excluded Marshall a few years prior.) Three years later, in Gaines, the High Court expanded this finding to the nation, holding that Missouri could not create a “separate”and “equal” institution, since the components of a legal education were often intangible and included such things as interaction with peers and access to mainstream networks of opportunity. This precedent later extended to other areas of higher education and finally, in Brown, to public K-12 schools. There would be no Brown without Charles Hamilton Houston. And, many historians believe, there would have been no heralded civil rights movement without Brown.

Sadly, Charles Hamilton Houston died in 1950 – four years before his dream came to fruition in Brown. Five U.S. Supreme Court Justices attended his funeral. Houston’s contributions toward ending racial segregation were largely unrecognized until after his death. In 1950, he was posthumously awarded the NAACP’s prestigious Spingarn Medal. Several schools and awards have been named in his honor. So, as you can imagine, we at the Charles Hamilton Houston Institute, have an impressive legacy to defend.

I believe that guaranteeing civil rights is the mainstay of a humane, productive and abundant society. And, too often of late, civil rights have been discussed in terms of how narrowly rather than how broadly they should be defined. Fair housing is a civil right. So is educational equity, legal equity and environmental equity. The Charles Hamilton Houston Institute has embarked on four initiatives to address these inequities, both locally and nationally. And I hope that we at the Institute can consider everyone in this room a partner in our efforts.

First, we have the O’Connor project, to identify and promote policies and practices that improve educational outcomes for children of color and in so doing moderate if not eliminate the need for affirmative action as a means to equal educational opportunity. The project is named after Justice Sandra Day O’Connor who wrote in a landmark Michigan affirmative action case, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”

Second, is our project to divert the school to prison pipeline, that insidious route that catches more and more young people of color everyday as they move from segregated, impoverished, throwaway schools to juvenile halls and adult prisons. This initiative will identify selected communities where we will look to reduce dropout rates and reduce the number of youths who become embroiled in the criminal justice system. Too many such communities exist right here in Massachusetts.

The third initiative is a Prison Re-Entry program in which the Institute will focus on helping ex-prisoners in 20 cities clear a path toward stable employment. This project will draw upon commitments of corporate executives, community clergy and directors of training and employment programs to work with advocates in the community develop and implement action plans that improve job opportunities for ex-offenders. The need for this project is clear here in Massachusetts, where debate over CORI reform became mired in political posturing during the last campaign.

Recent events in Maryland, Florida, California, New Jersey and Illinois have brought us to a critical moment in America’s tortured history of capital punishment, a history that includes the deep connection between racial politics and the state-sanctioned executions of African Americans documented in Professor Ogletree’s most recent book, From Lynch Mobs to the Killing State. The institute’s fourth initiative aims to strengthen the anti-death penalty movement through research, policy analysis and legal training, as well as consensus-building among a wide range of national and state-level partners. In this initiative the Institute will work with local advocates, legal experts, elected officials and others in strategic states across the country. We are co-sponsoring the screening a new film, “Race to Execution,” narrated by Professor Ogletree, on February 8 at Harvard Law School.

Charles Ogletree’s vision in naming the institute after Charles Hamilton Houston was to provide a vehicle to realize the legacy he left us; a legacy that combines a thirst for social justice with a commitment to rigorous research and sustained social activism in the pursuit of legal remedies to injustice; one that understands victory is not immediate, but follows from methodical, strategic, persistent effort. It is a legacy best summed up in Houston’s own words: “This fight for equality of educational opportunity (was) not an isolated struggle. All our struggles must tie in together and support one another…We must remain on the alert and push the struggle farther with all our might.” Obviously these are lessons reflected in the mission and activities of JALSA itself.

As all of us involved in the pursuit of justice know, we are must remain ever vigilant for cracks that might lead to chasms. One such matter of critical concern to us is the pending Supreme Court action on two cases that challenge the ability of school districts to construct voluntary desegregation plans. Such plans are the last remaining vestige of the landmark Brown decision. The news, so far, is not good. On December 4, we co-sponsored a rally that drew several hundred people from across the country to the steps of the Supreme Court to urge the justices to protect this relatively innocuous but highly symbolic remnant of Brown. It was a cold morning in Washington and all hopes were pinned on Judge Anthony Kennedy, considered by informed observers to be the “swing vote” between the otherwise evenly divided court. The cold breeze invaded the chamber when Justice Kennedy made it clear where his sympathies lay. Perhaps the most chilling was his suggestion school integration could be achieved by building a school on the border between a white neighborhood and a neighborhood of color. That’s right. The reasonable voice on the United States Supreme Court is suggesting that we build public policy on the tacit acceptance of racially segregated housing. If we ever needed proof of the intersection between housing and education, this was it.

It is hard to imagine, but if the court’s decision follows as predicted by the nature of those oral arguments just three years after we observed the 50th anniversary of this landmark decision, Brown v. Board of education could lose completely all power and reach. The irony is that most Americans today accept Brown’s basic logic and few would consciously seek a return to the system of Jim Crow the decision struck down.

I have recently been reading Nicholas Lemann’s Redemption, a riveting account of the 1875 reign of terror by which white Mississippians deprived newly freed blacks of the rights guaranteed by the 14thand 15th amendments. The book recounts one of the darkest moments of American history, one perhaps best known for the frightening complicity of the federal government. Buried in the text is an account attributed to President Grant of his failure to send troops to stop the bloodshed and protect the rights of the newly freed slaves.
I should not have yielded. I believed at the time I was making a grave mistake. But as presented, it was duty on one side, and party obligation on the other. Between the two I hesitated, but finally yielded to what I believed was my party obligation.

Lemann writes: “The war had abolished slavery and established the authority of the national government over the state governments. But now even many leading Republicans were retreating from the idea of national sovereignty.”

It is not my intention to be alarmist here, but there is at once a frightening parallel between and fascinating irony in the collapse of reconstruction and the direction of today’s court. The parallel is the court’s notion that there is equivalence between the effects of a state sanctioned segregated school system on a child of color and a voluntary assignment plan on a white student. The court seems to think we have done enough to remove the vestiges of state action and that all things are now equal; that there is no difference between an abstract principle of colorblindness and the tangible, consequential inequities between communities and the schools in them.

Clearly, our situation today is not as dire as it was in 1875. There are very real differences, not the least of which was apparent a couple of days ago on the steps of the state house. But as hopeful as we may be about the future of the commonwealth under the new administration, we must recognize the magnitude of the problem we face. Here in Massachusetts many of our schools were built by funds provided in exchange for adopting and maintaining voluntary school desegregation plans. Indeed, the Court thought better than to accept the Lynn, Massachusetts case, which now stands threatened.

The irony is that if there is hope for us it is in adopting the single state strategies used to dismantle reconstruction. For most of us the notion of state’s rights sends shivers up our spines. But we are now in a position in which we will have to craft state-by-state strategies for preserving rights we have won and achieving the additional ones we desperately need. It is an odd reversal, then, to accept this state control and work within it.

Today may be more similar to the post reconstruction era than we might think. Later this year the Charles Hamilton Houston institute will host a two day conference to consider the contemporary legacy of the Supreme Court’s Dred Scott decision. Of all the truly awful aspects of this notorious decision perhaps the most relevant for us today was its denial of the basic right to citizenship for black Americans. While we look to the state house today and revel at how far we have come, the Houston Institute is asking: just how unobstructed, really, is the path to full citizenship for residents of the United States? All four institute initiatives are connected in the broad pursuit of securing full citizenship and participation in a fairer, more just democracy.

This was a pursuit that dominated the life and career of Charles Hamilton Houston. Seventy years ago, Houston viewed legalized segregation as a roadblock to full citizenship for African Americans. In the 21st century, although segregation is no longer legal, huge inequalities still stand in the way of full, equal citizenship, and the Institute is committed to working collaboratively to remove these roadblocks. Think about the rabid anti-immigrant and anti gay rights sentiment that has spread across the nation. Think about the plight of youth of color across the country. Think about the number of people of color who are stripped of their citizenship under felony disenfranchisement laws. Think about the voter ID laws. These are national issues yes, but they affect us here in the Commonwealth, as well.

So what shall we seek in fair and affordable housing? We shall seek increasing justice and fairness. We shall continue to marshal facts in support of our efforts and follow Houston’s lead by building the structures we need to dismantle the longstanding edifice of inequity we inherited.

We as a progressive community must be thankful to have Deval Patrick as our governor. How my heart leapt when, on election night, hope won out over despair. And it leapt again this week when he spoke clearly and forcefully to protect and uphold basic, fundamental rights in the face of threats, hatred and demagoguery. These are heady times for the hopeful among us. As Deval himself has warned, the hard times are yet to come and the pressures will mount as the budget and other political realities begin to impinge. Thus, we must make sure that we temper our hope with resolve. We must make sure we support Governor Patrick by voicing our continued commitment to justice and equity. We must recognize that there will be moments such as those faced by President Grant when political expediency and decency collide head on and the best way we can support the ideals we share with the governor is to encourage and support him in making the right choice. To do less would be a disservice to his leadership and his place in history, as well as to ourselves.