The Challenge of InclusionTemple Law Review (2017)
The creation of diverse and inclusive communities has long been one of American housing policy’s most important commitments. The United States Supreme Court recently reaffirmed this commitment in an important decision that interpreted the federal Fair Housing Act to require that municipalities avoid housing policies with a discriminatory impact on protected classes. Following the Court’s decision, the Department of Housing and Urban Development enacted groundbreaking new regulations requiring communities to take affirmative steps to provide housing for all protected groups. In practice, however, realizing the goal of inclusion is likely to prove exceedingly difficult, as efforts to create diverse communities often stir intense political opposition from existing homeowners. In consequence, scholarly and popular media accounts typically vilify these homeowners as selfish xenophobes. This Article presents a more complex picture. Though inclusion represents our society’s highest aspiration, exclusion is both necessary and desirable in any conception of community. I examine research in several disciplines, including economics, sociology, and political theory, and find in each discipline powerful arguments supporting a community’s power to exclude. Nevertheless, this Article contends that although exclusion is indispensable to the idea of community, the arguments in favor of exclusion, like the arguments against it, are overstated. It is possible to create communities that are diverse and inclusive, but doing so will, paradoxically, require some concessions to exclusion. The intractable question, often elided by the false choice between a mosaic of segregated “urban villages” and a “melting pot” that dissolves all differences, is how to balance the aspiration for inclusion against the practical need for exclusion. This Article concludes by suggesting some ways to compromise between inclusion and exclusion that may help make inclusive communities a reality.
- Fair Housing Act,
- Affirmatively furthering fair housing,
- land use,
- local government,
- urban sociology,
- public choice,
- law and economics
Publication DateWinter 2017
Citation InformationKenneth A. Stahl, The Challenge of Inclusion, __ Temple L. Rev. __ (forthcoming 2017).