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Tennessee Law Review

W.C. Bunting

Document Type

Article

Abstract

This Article argues that not all forms of residential segregation are alike. Certain patterns of residential segregation can be distinguished along two key dimensions: (1) voluntariness; and (2) net social impact. Voluntary residential segregation is largely incompatible with outcome-based policies designed to promote residential integration. This Article claims that the existence of voluntary spatial clustering implies that the government must adopt an ex ante choice-based approach to residential integration that seeks to protect and enable freedom of choice in housing rather than an ex post outcome-based approach that seeks to implement and maintain specific patterns of residential segregation. The central thesis of this Article is that the FHA mandate to "affirmative further fair housing" (AFFH) is properly interpreted as a responsibility to promote fair housing choice, as a duty to understand in which local communities those in need of affordable housing truly want to live, and an obligation to expand or modify the set of affordable housing choices to encompass as many of these desired locations as is fiscally possible, and not as an outcome-based mandate to site affordable housing in a limited number of areas that best implements certain patterns of residential integration deemed socially optimal by otherwise well-meaning policy elites.

Publication Date

2021

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