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Combating State Preemption Without Falling Into the Local Control Trap Thomas Silverstein

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Combating State Preemption Without Falling Into the Local Control Trap Thomas Silverstein October-December 2017 Volume 26: Number 4 Combating State Preemption Without Falling into the Local Control Trap Thomas Silverstein In recent years, there has been a (fracking) to ridesharing to municipal preempting progressive local laws, concerted effort by well-funded con- broadband. Significantly, some types they have often targeted cities that are servative interests, led by the Ameri- of blocked ordinances attempt to ad- more heavily Black and Latino than can Legislative Exchange Council dress social equity issues for margin- their encompassing states. It is clear (ALEC), to pass state laws that pre- alized communities, either directly or that, as practiced in 2018, many state empt local governments from engag- indirectly. State legislatures have legislatures are exercising their power ing in a broad range of regulatory ac- stepped in to stop localities from broad- to preempt local laws in a manner that tivity and, at times, the provision of ening non-discrimination protections frustrates racial justice goals and re- public services. The breadth of these to include sexual orientation, gender duces the political self-determination laws is staggering, covering topics identity, and source of income, and of people of color. ranging from hydraulic fracturing have barred living wage ordinances, inclusionary zoning ordinances, and The Perils of Local Control Thomas Silverstein, tsilverstein@ other policies designed to increase ac- lawyerscommittee.org, is Counsel at cess to opportunity for low-income For those familiar with civil rights the Lawyers’ Committee for Civil people of color. When state legisla- history, however, the need for con- Rights Under Law. tures have taken the step of expressly (Please turn to page 2) Snatching Defeat from the Jaws of Victory: HUD Suspends AFFH Rule that was Delivering Meaningful Civil Rights Progress Justin Steil and Nicholas Kelly After years of sustained pressure munity development field, the Depart- analysis that we conducted prior to the from civil rights advocates and sup- ment of Housing and Urban Develop- suspension, however, suggests that the port from across the housing and com- ment (HUD) in July of 2015 at last AFFH Rule was working. Even issued the Affirmatively Furthering though some municipalities submitted Justin Steil, [email protected], is As- Fair Housing (AFFH) Rule. On Janu- weak proposals, HUD correctly re- ary 5, 2018, however, HUD abruptly fused to accept those plans until they sistant Professor of Law and Urban announced that no new Assessments of were revised, and the majority of sub- Planning at MIT. Nicholas Kelly is a Fair Housing (AFHs) would be re- missions were a significant improve- PhD student in Urban Studies and quired until October of 2020, and ment over the prior Analysis of Im- Planning at MIT. This article is AFHs in progress would not be re- pediments to Fair Housing (AI) re- adapted from a forthcoming paper by viewed. In justification of the suspen- gime. the authors; citations have been omit- sion, HUD claimed that cities need ted. more time to comply. A research (Please turn to page 12) Poverty & Race Research Action Council • 740 15th Street NW • Suite 300 • Washington, DC 20005 202/906-8023 • FAX: 202/842-2885 • E-mail: [email protected] • www.prrac.org Recycled Paper (STATE PREEMPTION: Cont. from p. 1) posite. In deciding whether to support with racially biased leaders and large, or oppose individual bills in state leg- diverse cities that adopt counterproduc- straints on local control is equally clear. islatures, there is no quandary here. tive and discriminatory responses to Although state laws often mandated Advocates and committed legislators crime. segregation at the local level under Jim can easily commit to preempting ex- Crow, we remember the Montgom- clusionary and discriminatory local ery Bus Boycott, not the Alabama Bus policies and practices while opposing Anti-Discrimination Law Boycott, and Brown v. Topeka Board the preemption of policies and prac- Strikes the Balance of Education, not Brown v. Kansas tices that break down barriers and in- Board of Education. To this day, the crease access to opportunity. From Under certain circumstances, fed- municipalities play at least as central a time to time, there may be disagree- eral anti-discrimination laws may have role as, and perhaps a larger role than, ment about which category a bill falls the best potential for overturning pre- states in perpetuating and exacerbat- into, but the normative consequences emption laws that undermine racial ing segregation and racial disparities of such disputes are not inherently far- equity, and with fewer unintended in housing, education, employment, reaching. consequences. Yet prevailing in cases and criminal justice. The exclusion- For legal advocates, deciding using these theories raises significant ary zoning that keeps affordable hous- whether to advance interpretations of challenges, as discussed below. ing out of predominantly white com- state law that invalidate state preemp- For example, the Equal Protection munities is largely the product of city tion is entirely more complicated. The Clause of the Fourteenth Amendment councils and county boards of super- state law doctrines that can support of the U.S. Constitution prohibits visors, not state legislatures. Police challenges to state preemption laws states from adopting laws where in- chiefs hired by local officials estab- tentional discrimination is a motivat- lish policing priorities and strategies ing factor for passage. In some in- that fuel mass incarceration. State leg- For legal advocates, stances, there may be evidence, includ- islation can, at times, be an effective deciding whether to ing circumstantial evidence, that state tool for limiting the ability of local advance interpretations legislatures acted with discriminatory governments to adopt policies that gen- of state law that intent in adopting preemption laws. erate inequality. The New Jersey Fair Equal Protection Clause challenges to Housing Act, for example, pushes invalidate state preemption laws typically rely on the municipalities to adopt inclusionary preemption is entirely framework for inferring discriminatory zoning as a means of allowing a rea- more complicated. intent from circumstantial evidence sonable opportunity for the develop- enunciated by the U.S. Supreme Court ment of their fair share of the regional in 1977 in Metropolitan Housing De- need for affordable housing. That law can, almost without exception, support velopment Corp. v. Village of Arling- is every bit as much of a constraint on challenges to good state laws just as ton Heights. In that seminal case, local authority to regulate land use as readily as attacks on bad state laws. which involved a challenge to exclu- laws in Indiana, Kansas, and other For example, state constitutional home sionary zoning in a predominantly states which prohibit local inclusionary rule protections can shield discrimina- white Chicago suburb, the Court zoning. tory at-large systems of election that looked to the disparate impact of the The civil rights movement simply may limit political representation for zoning decision, the village’s history cannot embrace local control without people of color from state regulation. of discrimination, departures from conditions. The challenge for racial Restrictions on legislation that targets procedural and substantive norms in justice advocates is differentiating be- only one municipality may stymie at- the zoning process, and contempora- tween the increasingly common state tempts to address racial equity prob- neous statements by local officials. preemption laws that undermine racial lems that arise in specific localities, Though the Court ultimately con- justice goals and those that do the op- which may include both communities cluded that the plaintiffs had not proven that discriminatory intent was a motivating factor for the zoning de- Poverty & Race (ISSN 1075-3591) is published four times a year by the Poverty and cision, the Village of Arlington Race Research Action Council, 740 15th Street NW, Suite 300, Washington, DC 20005, Heights factors have guided the adju- 202/906-8052, fax: 202/842-2885, E-mail: [email protected]. Megan Haberle, editor; Tyler Barbarin, editorial assistant. Subscriptions are $25/year, $45/two years. Foreign dication of cases of this type ever since. postage extra. Articles, article suggestions, letters and general comments are welcome, Two important current challenges as are notices of publications, conferences, job openings, etc. for our Resources Section- to state preemption laws attempt to uti- —email to [email protected]. Articles generally may be reprinted, providing PRRAC lize the Village of Arlington Heights gives advance permission. framework to prove violations of the © Copyright 2017 by the Poverty and Race Research Action Council. All rights reserved. Equal Protection Clause. First, in (Please turn to page 9) 2 • Poverty & Race • Vol. 26, No. 4 • October-December 2017 INTERVIEW: The Cycle of Segregation Maria Krysan, Kyle Crowder, Tyler Barbarin, and Megan Haberle Maria Krysan and Kyle Crowder’s new book, Cycle of Segregation (Russell Sage 2017), analyzes housing segrega- tion, mobility, and the ways that daily, lifelong experiences mold people’s views of the neighborhoods they should—and should not—live in before they even begin considering a move. Drawing on interviews with dozens of Chicago residents, the authors offer a new framework for understanding the persistence of housing segregation
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