The Challenge of Inclusion
Volume 89, No. 3, Spring 2017
By Kenneth A. Stahl [PDF]

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 (HUD) 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 will prove exceedingly difficult. The Trump administration will almost certainly kill the new HUD regulation and is unlikely to make affordable housing a priority. In truth, it is doubtful that any administration of either party could succeed in diversifying communities because efforts to do so often stir intense political opposition from homeowners. As a result, 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. Nevertheless, this Article contends that 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 compromises between inclusion and exclusion that may help make inclusive communities a reality.

Kenneth A. Stahl, Professor of Law and Director of the Environmental, Land Use and Real Estate Law Program, Chapman University Fowler School of Law; J.D., Yale Law School, 2000; B.A., University of Michigan, 1997