By Kimberly Thomas Rapp
Director of Law and Public Policy

While unemployed evacuees from the Gulf Coast find themselves vulnerable to foreclosures, notices demanding rent, and the redevelopment rumor mill, concerns about heeding the property interests of displaced victims in rebuilding efforts soar.  Progressive politicians and activists have cautioned about the use of eminent domain to redevelop devastated areas that housed largely poor African American neighborhoods.  Representative Maxine Waters (D-CA) cautioned, “[w]e have to watch the redevelopment in New Orleans for a lot of reasons, and one of them is to make sure that the shadow government of the rich and the powerful does not end up abusing eminent domain to take property that belongs to poor people in order to get them out of the city.” [1]   Waters’ concern is one of many in the ongoing debate about the exercise of eminent domain and the impact of its misuse on poor and minority communities.

Invariably, critics and supporters of eminent domain can be found among both the left and right.  The government’s power of eminent domain arises under the Fifth Amendment to the U. S. Constitution, which provides that the government may take private property for public use upon payment of “just compensation.”  The recent U. S. Supreme Court decision in Kelo v. New London [2] continues to spur feverish debates about the exercise of eminent domain for gentrification.  In that case, a sharply divided Court held that condemnation of non-blighted property for the purposes of economic development satisfies the public use requirement of the Fifth Amendment.  To some, Kelo allows an overbroad interpretation of “public use” and sustained unfettered use of eminent domain to dismantle communities, particularly low income and minority communities.  To others, Kelo declined to exempt non-blighted, white middle class communities from the exercise of eminent domain and buttressed legitimate uses of eminent domain for sorely needed economic development in depressed areas, including low income and minority communities.  As the debate over the exercise of eminent domain continues, those who care about racial justice must carefully watch to discern between positive and negative efforts to redistribute wealth across racial lines.

In this issue, the Equal Justice Society (“EJS”) considers the impact of various property rights issues on minority and poor communities.  The law review summaries that follow highlight: 1) the race-infused discourse engaged to achieve urban renewal; 2) commonly asserted beliefs about African American land ownership; 3) legal processes that force the sale of minority owned property in urban and rural communities; and 4) misleading right-wing efforts to claim takings as an issue of civil rights.

Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 YALE L. & POL’Y REV. 1 (2003).  This article discusses how the movement to constitutionalize urban renewal paved the way for wide-ranging powers of private property condemnation.  Among the efforts of urban renewal advocates was the development of “blight terminology” that worked to restrict racial mobility.  The author explains that “[b]light was a facially neutral term infused with racial and ethnic prejudice.”  Blight became a new rhetorical device used to clear urban areas of minority and low income populations by signaling that a particular area was in danger of becoming a slum if eminent domain was not exercised to “renew” the area.

In political and judicial arenas, the problems of slums were well known – slums were “area[s] with run-down buildings, dirty streets, and a high crime rate that w[ere] almost exclusively inhabited by poor people.”  States had already declared slum clearance a public use.  Upon introduction of blight terminology, much of the litigation centered on whether the condemnation of blighted properties was legal in areas that were not yet slums.  However, when an area was blighted was open to manipulation since renewal advocates did not develop a systematic process to make such a determination.  Thus, blight remained in the eye of the beholder.  Free to use vague generalities to describe blight, renewal advocates simply argued that a blighted area was “on its way to becoming a slum.”

Through the discourse of blight and renewal, urban renewal efforts played a crucial role in redistributing minority populations and upset efforts to achieve integration.  The U.S. Supreme Court decision in Berman v. Parker [3] upheld a redevelopment plan targeting a “blighted” area of Washington, D.C.  The parties in that case vigorously debated the definition of blight.  Challengers to the condemnation of the private property at issue argued that the “creation of a ‘better balanced, more attractive community’ was not a valid public use.” [4]   However, the Court affirmed the public use of the taking deferring to legislative judgment of the need for renewal. 

Ironically, “at the same time [the Court] was deciding Berman, the Court was deciding [Brown v. Board of Education [5] ], which reflects a distrust of government (particularly local government) to protect the interests of minority groups and to treat all citizens equally.”  According to Pritchett , the Court’s “opinion in Berman reflects a faith in the political system’s ability to operate in a non-discriminatory manner.  Urban renewal, however, was an economic development program with profound racial implications that were ignored by all the parties to the [Berman] litigation.  The reality of urban renewal was that redevelopment was used to reshape the racial and economic geography of cities.”

Margalynne Armstrong, Race and Property Values in Entrenched Segregation, 52 U. MIAMI L. REV. 1051 (1998).  Armstrong, a professor at Santa Clara University Law School  explains that extensive housing discrimination continues to occur decades after the Fair Housing Act (“FHA”) was originally enacted as Title VIII of the Civil Rights Act of 1968 to achieve “truly integrated and balanced living patterns.”  According to studies of America’s ten largest cities, “‘69 percent of minority apartment-seekers who look at four different units will be subjected to discrimination at least once.’”  Additionally, “many real estate professionals continue to steer African-American home-seekers away from predominantly white neighborhoods.”  White realtors, home-sellers and home-seekers, offering excuses to avoid integration, commonly assert that African-American land ownership causes property values to depreciate or fail to appreciate.  Consequently, appraisers have considered whether African-American occupancy has a tendency to “blight” white areas with depreciation and loss of tenants.

Armstrong explains, however, that  “declines in value or appreciation are directly traceable to a decrease in white demand” in conjunction with other discriminatory factors.  Generally, primary attention is given to nonwhite demand for housing in racially mixed neighborhoods, however “‘white demand is the single most important factor necessary to maintain the stability of racially mixed areas.’”  White market abandonment – white refusal to purchase property in areas with significant numbers of African-Americans – results in a decrease of potential buyers, cutting the number of potential competing bidders, resulting in lower purchase prices for black-owned property.  While the FHA “makes it unlawful ‘to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling … because of race,’ there is not a prohibition on refusing to purchase from a person because of race.”

Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss: A Critical Role for Legal Empiricism, WISCONSIN L. REV. 557 (2005).  Mitchell, a professor at DePaul University's College of Law, provides a historical overview of the issue of rural black land loss and specifically discusses social science field work conducted by the author and other members of his research team that demonstrates the importance of using “bottom-up” research methodologies when studying legal issues impacting poor or minority communities. While the subject matter of this article is rural black land loss, it raises many issues that apply more broadly to land ownership and possession issues impacting non-rural poor and minority communities. 

For example, the author explains that forced-sales transferring property from blacks to whites have resulted from various legal processes, including takings, partition sales, tax sales, foreclosures, and adverse possessions.   In many reported circumstances, black property owners were made especially vulnerable to such legal actions due to their age, race, health, and education.  According to Mitchell, a lack of empirical studies done on the topic has resulted in questionable categorical claims by academics and activists.  However, little legal scholarship has been developed on the trend normalizing rural black land loss through legal processes “because: (1) the black landowner is cast as a historic, if tragic, figure of the past; (2) race is viewed as playing little, if any, role in what are assumed to be either ordinary market or macroeconomic processes; or (3) racism is assumed to be an all-powerful force that will inevitably dispossess African Americans of their property no matter what the legal regime.”

Douglas T. Kendall and Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25  BOSTON COLLEGE ENVIRONMENTAL AFFAIRS L. REV. 509 (1998).  Kendall and Lord chronicle the progress of the “Takings Project” – “the deliberate appointment of activist conservative judges to critical positions on the federal judiciary; the activism of these judges in creating constitutionally protected development rights; and the combined efforts by developers, foundations, and non-profit organizations to guide takings cases through the court system.”  Promoters of the Takings Project portray it as a civil rights issue as they champion the rights of small landowners; however, the primary objective of the Project remains focused on the advancement of an anti-regulatory, anti-environmental political agenda.

The doctrinal shift in takings law dates back to the call by Attorney General Edwin Meese III during the Reagan Administration for conservatives to join in what was described as “constitutional calisthenics.”  Meese adopted the blueprint articulated by Professor Richard Epstein first in the 1970’s and memorialized in book form in 1985, detailing the use of the Takings Clause as a means to implement the Administration’s crusade against federal regulations.  “Epstein theorized that the Takings Clause renders unconstitutional any and all redistributions of wealth, and thus renders ‘constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, [and] progressive taxation.’”  Thus, the Takings Project would use the Fifth Amendment Takings Clause to halt federal and state regulation of business and property.

Kendall and Lord explain that the appointment of conservative activist judges to the U.S. Supreme Court, Federal Circuit Courts of Appeals and Court of Federal Claims is an important legacy of Meese’s original project.  At the time this article was written, there were at least four justices on the Supreme Court consistently sympathetic to the Takings Project and solidly in favor of property owner victory, including Chief Justice Rehnquist and Justices O’Connor, Scalia, and Thomas.  Interestingly, the fifth vote inconsistently supporting the Project’s efforts has come from Justice Kennedy (the swing vote against property owners in Kelo).

The fate of the Takings Project will depend on the jurisprudence of Justice Kennedy and the ideology of new appointees to the Court, including new Chief Justice Roberts.  The authors conclude that “[t]he stakes – our nation’s health, safety, and environmental laws – are high enough to justify” concerted scrutiny by progressive organizations and state and local governments to thwart the efforts of the Project.