Why Courts Ignore Exclusionary Zoning
/[M]ere negative attitudes, or fear … are not permissible bases for treating … home[s] … differently … .
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).
If you’ve been following this series, you should know that we’ve arrived at the point in history—the mid-1970s—when the housing movement gave up on the Constitution to try litigating under the Fair Housing Act (1968) instead. This isn’t to impugn the movement: this sorry state of affairs is substantially the Supreme Court’s (and Herbert Hoover’s) fault.
We’ll pivot to the Fair Housing Act after this latest entry on constitutional law. We hope you’ve learned how housing relates to the Fourteenth Amendment, and seen how hypocritical “due process” and “equal protection” decisions have shaped the America we inhabit today. You should understand by now that there’s a difference between “strict scrutiny” and “rational basis” review, and that courts select between those standards based on whether they agree there’s a “fundamental right,” such as privacy or property, at stake. See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
The Supreme Court, in an ill-litigated challenge to the fast-paced eviction procedures in Oregon’s Forcible Entry and Wrongful Detainer Law, Or. Rev. Stat. §§ 105.100 et seq., suggested in a 1972 opinion that “the ‘need for decent shelter’ and the ‘right to retain peaceful possession of one’s home’ are [not] fundamental interests” drawing strict scrutiny under the Fourteenth Amendment. Lindsey v. Normet, 405 U.S. 56, 73 (1972). We agree with Thurgood Marshall that Lindsey obtained the correct result. See id. at 74–79 (holding that the statute’s requirement to post double rent before appealing an eviction judgment failed rational basis review). But Lindsey’s implication of rational-basis review for all housing cases was unfortunate.
This nightmare did become true. Two other SCOTUS precedents, also from the 1970s, seem to have shut the door on challenging exclusionary zoning under the Fourteenth Amendment to the U.S. Constitution. Those cases are:
“TOTAL, PURPOSEFUL, INTRANSIGENT EXCLUSION”
Warth v. Seldin, 422 U.S. 490 (1975), is a case best understood by reading the main dissent. See id. at 521–29 (Brennan, J., dissenting). Penfield, New York, is the Eagleton to Rochester’s Pawnee. A group of commute-bound Penfield workers joined forces with would-be Penfield developers, along with some Rochester taxpayers, to attack Penfield’s exclusionary zoning policies and practices for denying the equal protection of the laws. SCOTUS refused to decide the merits because, SCOTUS said, “the initial focus [in a zoning case] should be on a particular project,” and not the big picture. Id. at 508 n.18 (majority opinion). Because the plaintiffs wanted to attack Penfield’s entire scheme and not just one particular project, the Warth Court ordered the case dismissed for “lack of standing.” Id. at 521 (Brennan, J., dissenting); see also id. at 519 (Douglas, J., dissenting) (“Standing has become a barrier to access to the federal courts.”).
Now, “standing” is the most important judicial doctrine you haven’t heard of. Standing could take a semester of law school to teach, so for efficiency’s sake we’ll point to Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (modern three-part standing test: injury, causation, and redressability). In the federal courts, and in the roughly half of states that follow Lujan, it’s now impossible to litigate without clearing Lujan’s three-part “standing” test. And Lujan rested heavily on Warth. See Lujan, 504 U.S. at 559–62, 578 (majority opinion) (citing Warth); id. at 580 (Kennedy, J., concurring in part and concurring in the judgment) (same); id. at 583 (Stevens, J., concurring in the judgment) (same).
Warth’s “glaring defect,” according to Justices Brennan and Marshall’s dissent, was “that it views each set of plaintiffs as … prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined.” Warth, 422 U.S. at 521 (Brennan, J., dissenting). “The rights of low-income minority plaintiffs who desire to live in a locality,” under Warth’s logic, would “seem to turn on the willingness of a [developer] to litigate the legality of preclusion of a particular project, despite the fact that the [developer] may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low-income minority plaintiffs’ interest is not to live in a particular project but to live somewhere in the town in a dwelling they can afford.” Id. at 522. Amen: overpaying for a home is an economic injury, and when the government enforces a housing shortage that drives the rent too damn high, the people who are hurt deserve constitutional redress in court.
“The portrait which emerge[d]” from Warth, though the majority refused to recognize it, “[wa]s one of total, purposeful, intransigent exclusion of certain classes of people from the town [of Penfield], pursuant to a conscious scheme [of exclusionary zoning] never deviated from.” Id. at 523. The Warth majority didn’t deny this. Only rather than granting a remedy, the Court sheepishly held that Article III of the U.S. Constitution barred the federal courts from seeing what four dissenting Justices plainly saw. See id. at 498–502, 512–18 (majority opinion).
The problem with standing is that it can “turn[] the very success of [an] allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation.” Warth, 422 U.S. at 523 (Brennan, J., dissenting). Zoning, like so much else about American dysfunction, survives on dispersed costs and concentrated benefits. See, e.g., Pritchard & Zywicki, Finding the Constitution: An Economic Analysis of Tradition’s Role in Constitutional Interpretation, 77 N.C. L. Rev. 409, 477–89 (1999) (public choice theory). Standing doctrine allows that dysfunction to thrive.
The litigator’s way around “standing” is to represent plaintiffs who have it. And in the housing context, SCOTUS has helpfully recognized what we might call “commuter standing.” But the decision that announced commuter standing, just two years after Warth, also came at the catastrophic cost of exempting most exclusionary zoning from Fourteenth Amendment review.
“UNEXPLAINABLE ON GROUNDS OTHER THAN RACE”
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), is widely recognized by Fourteenth Amendment practitioners as a major hurdle for equality-oriented housing litigation. There isn’t a workable Fourteenth Amendment theory of housing that doesn’t try to account for Arlington Heights. E.g., Araiza, Cleansing Animus: The Path Through Arlington Heights, 74 Ala. L. Rev. 541 (2023); Stern, Note, A Federal Builder’s Remedy for Exclusionary Zoning, 129 Yale L.J. 1516, 1545–46 (2020).
Arlington Heights is today known as a “disparate impact” case. That phrase hadn’t yet become the jargon it is today when Arlington Heights was decided, and it took another 38 years, after Arlington Heights, before the Supreme Court would affirm that “disparate impact” is a valid legal theory—if only in the limited context of the Fair Housing Act, as we’ll show in April. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Proj., 576 U.S. 519 (2015). “Disparate impact” is a theory about “the equal protection of the laws,” U.S. Const., amend. XIV, § 1, which holds that a policy can be invalid if it fosters “a disparity in racial impact,” whether or not the policy was intended to create the disparity. Arlington Heights, 429 U.S. at 259 (citing James v. Valtierra, 402 U.S. 137 (1971) (upholding Article XXXIV of the California Constitution)).
To understand “disparate impact,” it helps to know about Washington v. Davis, 426 U.S. 229 (1976). Washington dealt with a challenge to a promotion exam used by the Washington, D.C., police department. The D.C. police selected officers for promotion in part based on “Test 21,” a standardized test of “verbal ability, vocabulary, reading and comprehension”that was “used generally throughout the federal service” and not only by the D.C. police. Id. at 234–35. “The validity of Test 21” was “the sole issue.” Id. at 235. The record showed that Black applicants failed the exam “four times as” often as whites, and two Black officers who’d been denied promotions claimed that “[t]his disproportionate impact, standing alone,” violated the Equal Protection Clause in the absence of “proof by [the government] that the test was an adequate measure of job performance.” Id. at 237. Our hero Thurgood Marshall joined another Brennan dissent arguing that the government should have at least been required to show what Test 21 had to do with policing. Id. at 256–70 (Brennan, J., dissenting); cf. Pac. Coast Horseshoeing Sch., Inc. v Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020) (horses don’t speak English). But the Washington Court assumed outright, and paternalistically, that Test 21 “s[ought] modestly to upgrade the communicative abilities of its [Black] employees rather than to [have the government] be satisfied with some lower level of competence.” 426 U.S. at 246. The Court held that a “statistically disproportionate racial impact” did not violate the Fourteenth Amendment because, the Court feared, the specter of disparate-impact judgments “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” Id. at 248 (majority opinion). Well then. Thus the patois of deference prevailed again in Washington.
Among Brennan and Marshall’s criticisms was that the Washington majority expressly disapproved the Seventh Circuit’s decision below in Arlington Heights, on which the Court had by then granted cert. See id. at 257 (Brennan, J., dissenting) (rebutting id. at 224–25 n.12 (majority opinion) (citing Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 517 F.2d 409 (7th Cir. 1975), cert. granted, 423 U.S. 1030 (1975), rev’d, 429 U.S. 252)):
-
SCOTUS’s usual etiquette is to not decide cases before they decide them. Cf. Trump v. Anderson, 601 U.S. __ (2024) (slip op.) (Sotomayor, Kagan, & Jackson, JJ., concurring in the judgment) (quoting Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 348 (2022) (slip op.) (Roberts, C.J., concurring in the judgment) (“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”). Brennan and Marshall saw Washington’s writing on Arlington Heights’s wall, and their prediction proved correct. Cf. Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting) (“Do not believe it.”).
Arlington Heights went as footnote 12 in Washington prejudged. See Washington, 426 U.S. at 224–25 n.12. The case arose in “northwest Cook County,” outside Chicago, whose “population of minority groups remained quite low” throughout the boom years of the 1960s, thanks no doubt to racial redlining. Arlington Heights, 429 U.S. at 255. A Catholic church wanted to build affordable housing, and it partnered with an experienced affordable developer to propose 190 homes on 15 acres without even exceeding two stories. Id. at 255–57. But the project needed a rezoning. Nimbys “addressed what was referred to as the ‘social issue’—the desirability or undesirability of introducing at this location in Arlington Heights low- and moderate-income housing, housing that would probably be racially integrated.” Id. at 257–58. When the Village denied the rezoning and some stakeholders sued, the Seventh Circuit found the denial unconstitutional but the Supreme Court reversed. Id. at 259–60. Citing Lindsey (and thus denying strict scrutiny), the Court repeated that housing is not a fundamental right. 429 U.S. at 259 n.5. The Court let stand a factual finding that Arlington Heights “continued to exhibit a high degree of residential segregation” and “had no other current plans for building low- and moderate-income housing, and [that] no other [well-zoned] parcels in the Village were available [to the affordable developer] at an economically feasible price.” Id. at 260. In the Court’s view, however, the neighbors’ “property values” counted more than checking zoning segregation, let alone the church’s and the developer’s freedom to build. Id. at 259.
Justices Marshall and Brennan acquiesced in the rules announced by Arlington Heights, but not in their application. Arlington Heights, 429 U.S. at 270–71 (Marshall, J., concurring in part and dissenting in part). Following Washington and Arlington Heights, it’s now settled law that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Id. at 264–65 (majority opinion). Arlington Heights allows that proof of “discriminatory purpose” as “a motivating factor” can preclude the usual rule of “judicial deference,” and that “a clear pattern, unexplainable on grounds other than race,” would still violate the Equal Protection Clause. Id. at 265–66 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). But the Court applied its rules with more deference than was warranted. See id. at 268–71. Arlington Heights allows segregation to be dressed up as the preservation of “property values,” and thereby to escape judicial review. See id. at 258–60. Combined with Warth, 422 U.S. 490, it makes it easy for the federal courts to simply ignore exclusionary zoning.
SILVER LININGS PLAYBOOK
But there’s also good news about Arlington Heights: it’s a rock-solid blueprint for would-be residents’ standing to sue in federal court.
Part II of the Court’s opinion in Arlington Heights—in which Justices Marshall and Brennan concurred—emphasized that it’s not only developers who have standing to challenge nimby zoning decisions. See 429 U.S. at 260–64 (majority opinion); accord id. at 271 (Marshall, J., concurring in relevant part). Would-be residents who want shorter commutes have standing, too. Id. at 263–64 (majority opinion).
Here’s binding Supreme Court precedent:
Respondent Ransom, a Negro, works at the Honeywell factory in Arlington Heights and lives approximately 20 miles away in Evanston in a 5-room house with his mother and his son. The complaint alleged that he seeks and would qualify for the housing MHDC wants to build in Arlington Heights. Ransom testified at trial that if [the project] were built he would probably move there, since it is closer to his job.
The injury Ransom asserts is that his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory. If a court grants the relief he seeks, there is at least a ‘substantial probability,’ Warth v. Seldin, supra, at 504, that the Lincoln Green project will materialize, affording Ransom the housing opportunity he desires in Arlington Heights. His is not a generalized grievance. Instead, as we suggested in Warth, supra, at 507, 508 n.18, it focuses on a particular project and is not dependent on speculation about the possible actions of third parties not before the court. See id. At 505; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. [26], at 41–42. Unlike the individual plaintiffs in Warth, Ransom has adequately averred an ‘actionable causal relationship’ between Arlington Heights’ zoning practices and his asserted injury. Warth v. Seldin, supra, at 507. We therefore proceed to the merits.
Arlington Heights, 429 U.S. [252] at 264. Commuter standing can work.
There’s also a surprising coda to SCOTUS’s abdication of the right to inherit, purchase, lease, sell, hold, and convey a home. In a 1985 decision that Justice Marshall couldn’t help roasting, a Court majority admitted that it’s unconstitutional to zone “feeble-minded” people out of town. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 435–39 & n.2, 450 (1985); id. at 460 (Marshall, J., concurring in the judgment in part and dissenting in part) (“When a zoning ordinance works to exclude [a class] from all residential districts in a community, [common sense can] require that the ordinance be convincingly justified as substantially furthering legitimate and important purposes.”). Marshall called out the “lengthy and tragic history” of “segregation and discrimination” against the mentally disabled, culminating in the eugenics movement “that in its virulence and bigotry revealed, and indeed paralleled, the worst excesses of Jim Crow.” Id. at 461–65 (citing Buck v. Bell, 274 U.S. 200, 207 (1927)). To Marshall, an invidious history called for federal courts to let litigants contest the government’s facts; in any event, the majority agreed with Marshall that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally [disabled] differently from apartment houses, multiple dwellings, and the like.” Id. at 448 (majority opinion).
Whatever the label for its standard of review, Cleburne treated facts like facts. See id. at 447–50 (discrediting government baloney under the rational-basis test). It’s not a bad start, but it’s hard to square with Belle Terre: local governments can zone out the young and the poor, so long as they don’t exclude the mentally disabled. How sad that the categories even figure in the first place.
* * *
Housing shortages aren’t inevitable. They’re a product of bad policy, and they take a generation to accrue. This sadly means they take a generation to undo. Congress passed (and President Johnson signed) the Fair Housing Act in 1968. Our next three posts will trace how that statute ended up repeating constitutional history.