“PIGS IN THE PARLOR”: THE LEGACY OF RACIAL ZONING AND THE CHALLENGE OF AFFIRMATIVELY FURTHERING FAIR HOUSING IN THE SOUTH

The Fair Housing Act of 1968 includes a provision that requires that the Secretary of Housing and Urban Development (HUD) administer the policies within the Act to “affirmatively further” fair housing. Scholars have largely derived their analysis from studying large urban areas and struggles to integrate the suburbs. The literature, however, has not focused on the impact of zoning and discriminatory land use policies within and around low-income rural and small communities or specifically in the southeastern United States. Scholars have also insufficiently considered the implications of these policies on the duty to “affirmatively further” fair housing. Racial zoning was the preferred method of establishing residential segregation in the South in the early 20th century until the U.S. Supreme Court formally struck it down in 1917. This Article argues that racial zoning should be considered a logic and a metaphor rather than simply a historical moment in land use policy that has passed. The logic of racial zoning typifies anti-black land use policies that confine African Americans to particular areas, and this confinement facilitates the degradation of these areas. This Article contends that the logic of racial zoning creates black residential spaces and inscribes them with features that seek to render them undesirable. This process entrenches residential segregation by driving non-black residents away, just as rendering white space as desirable and exclusive protects housing inequity. The Article explicates the history of the racial zoning movement and the court cases that led to its demise. These cases, however, left the logic of racial zoning largely untouched. It then examines the legacy of racial zoning through three phenomena: (1) the designating of locations for black communities; (2) the lack of protective zoning given to black residential areas; and (3) the disproportionate siting of LULUs in these areas. Finally, it asks whether the federal Fair Housing Act can remediate this legacy through policy or litigation. The Article argues that fair housing litigation has had limited success in undoing discrimination in land use protections that characterize the legacy of racial zoning. Instead, HUD’s AFFH Rule may have a great impact in challenging jurisdictions to tackle community development issues in the context of fair housing. Its success in the South, however, is limited because its oversight mechanisms often overlook smaller, rural communities where anti-black land use policies and segregation patterns remain in place. Ultimately, fair housing in the South is not just about access to housing itself, but also about changing the context around it