Upon reading Strahilevitz “Information and Exclusion” and realizing how far individuals go to create homogenous communities, I started wondering if the FHA and the lawsuits brought under it are worth their costs. Strahilevitz himself suggests that too many golf courses were built in an attempt by individuals to create “white” communities. Those resources might have actually been better employed if homeowners were free to sell to whom they wanted. Maybe allowing people to be honest about their wants (regardless of how rude, ignorant, and distasteful such wants may be) would be the economically efficient and natural way to encourage nondiscrimination.
I know actually allowing individuals to discriminate might seem a strange way to encourage nondiscrimination, but I feel that the country is at a point in its history where such blatant discrimination would be publically shamed. A person listing his home on the internet as for sale to “whites only” or “Christians only” would not receive a warm welcome. Internet shaming would: show racists how far removed their morals are from the rest of the country and increase the social costs of being a racist, while still respecting property rights and freedom of speech. Perhaps it is because I am a half century removed from the passage of the Civil Rights Act and living in the middle of a housing crisis, but I cannot even imagine many individuals (even those with racist tendencies) refusing to sell their house to someone because of their race, sex, etc. However if someone is willing to be publically shamed and is willing to take the hit in his pocketbook, I say we respect that right instead of forcing him to spend resources inefficiently in an attempt to reach the same outcome. Furthermore, not all discrimination comes out of hate and should be shamed. One can imagine a homeowner with fond memories of raising a family her house and has decided she wants to sell the house to another family with children, even if it means having to sell it for less than the condo-developer is offering. Why should the government be able to tell her that her preference is of no value? It is her property after all.
On the other hand if we take Strahilevitz’s suggestion of keeping the FHA and supplementing it to deal with exclusionary vibes and amenities, I worry that their will be no end to what the federal government can dictate to communities and owners of private property. For example, in addition to telling country clubs that they have to build x number of basketball courts for every 9 holes; one can easily imagine the fed telling a community that if they use tax dollars to bring in a country band for a town festival, they must allocate an equal amount to bringing in rap artist because 92% of country listeners are white.[1] The administrative costs of trying to decide if an amenity is meant to be exclusionary or is simply a group preference are simply are not worth it.
I realize that allowing people to discriminate based on race, sex, religion etc. causes harm to the entire group not just the person being discriminated against, however in a society where racists are the minority I am not sure the worries behind Brown v. Board are relevant. However, I am concerned that getting rid of FHA would create hotspots of racists that would lead to an increase in the severity and occurrence of racial violence. It would be interesting to see the empirical evidence on this.
While it is true that there is value in diversity in communities, it is often overlooked that sometimes to truly appreciate a diverse culture one needs some critical mass. Part of the charm of an ethic neighborhood is the concentration of a given culture living there. If the area becomes too heterogeneous, the unique value of the area is lost and it becomes just another hodgepodge of average Americans. My main problem with Strahilevitz is that he seems to suggest that all neighborhoods in the country should be 64% white, 12% African American, 16% Latino, and 8% Asian and completely ignores the benefits of homogeneous communities.
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