Suffolk Law Responds to the Housing Crisis

Tackling discrimination and affordable housing head on

Housing Crisis 

By Michael Fisch with reporting from Mark Potts

Photography by Michael J. Clarke

Study finds discrimination pervades Greater Boston’s rental market

When Aisha inquired about an apartment in Boston recently, the listing agent said he wasn’t sure when he planned to show the unit, asked Aisha for her credit score, and told her to text her number so he could call the next day. The listing agent didn’t follow up, so Aisha tried him again. The agent rushed her off the phone, saying, “You gotta stop calling me.” She never heard from the agent again.

But when another young woman, Meredith, called about the same apartment, the agent immediately offered her a tour, confirmed it by text, and didn’t ask for her credit score.

Why the difference?

Aisha and Meredith are race-associated names chosen quite purposefully by Suffolk Law’s Housing Discrimination Testing Program (HDTP) as part of a study in which undercover testers interacted with rental agents or landlords of 50 randomly selected rental properties in Greater Boston from August 2018 to July 2019.

This summer, the HDTP’s findings were compiled in a study co-authored by the Analysis Group and funded by The Boston Foundation.

Highlights from the findings

Overall, Black testers faced discrimination in 71% of the tests, including issues like not being able to make an appointment, not being offered the discounts or free parking offered to white testers, and not being offered an application. Agents showed Black testers about half the number of apartments shown to white testers and were far less likely to return Black testers’ calls—just 62% of the time versus 92% for white testers.

And for people using a Section 8 voucher, which helps low-income families, the elderly, and people with disabilities afford rental housing in the private market, the chances of even touring an apartment were few and far between.

Nearly 90% of testers who indicated they were using a voucher faced discrimination, regardless of their race. In a number of cases, the brokers told the testers outright that the owner was not accepting voucher participants.

Both state and federal law prohibit housing discrimination based on race and source of income, among other reasons, so the findings suggest both pervasive discrimination and unlawful conduct. The HDTP’s rigorously designed testing program began in 2012 and has resulted in multiple enforcement actions by state agencies.

City signs agreement with Suffolk

The most recent findings were so compelling that they prompted immediate calls for change.

A few days after the study was released on July 1, 2020, industry publication Banker & Tradesman called on the state’s Attorney General’s Office to convene a task force to address the housing discrimination problem.

“No serious person can tell themselves that these results were the product of shoddy study design,” the publication wrote. “To make sure no other factor could influence the broker’s actions, the listings in each test were randomly chosen, testers did not know each other, participated in only one test each, and, in each test, had the same income, credit score, sex, disability, family size, and gender identity.”

Boston City Councilor Matt O’Malley, who referenced the study on NBC 10, was just one of several councilors who took to local media this summer to decry widespread housing discrimination in the city and to announce a formal council hearing on the HDTP’s findings.

At that hearing on October 13, Suffolk Law Professor William Berman, director of the HDTP, laid out the study’s conclusions. William Onuoha, director of Boston’s Office of Fair Housing & Equity (OFHE), then announced that the OFHE had signed an agreement with Suffolk Law to fund a new discrimination testing coordinator position, housed at Suffolk. The new hire will be part of the HDTP and will run a comprehensive undercover testing program across Boston.

A commitment to enforcement

Spurred by Suffolk’s data, Onuoha announced that the OFHE will file agency-initiated enforcement actions against agents and landlords found to be discriminating. “This is particularly important, because the responsibility of fighting housing discrimination shouldn’t only fall on victims,” says Jamie Langowski, assistant director of the HDTP.

“Imagine you’re rushing to find a place to live for your family, addressing your work responsibilities, and then you add on a layer of trying to convince a lawyer to take on a housing discrimination case,” says Langowski. “It’s hard for anyone in that set of circumstances to make a legal case a priority.” And people often don’t know they are being discriminated against, she adds.

Discipline of rental agents who discriminate is rare, and the state legislature should make it easier to suspend offending brokers, Langowski argues. Toward that end, the HDTP is regularly convening fair housing stakeholders from nonprofits, the government, and academia to push for changes in enforcement, punishment, broker training, and the legal processes for acquiring fair housing.

With a strong commitment for legal enforcement from the City, more instances of housing discrimination will be challenged and stopped, she says.

How does housing discrimination testing work?

Seventy-one Suffolk Law students served among 200 testers posing as interested renters. Pairs of testers, equal except for the characteristic they were testing for, started the process by calling the advertisers of 50 randomly selected rentals in nine Greater Boston cities and 11 Boston neighborhoods. White testers were assigned names such as Brad and Anne, and Black testers were assigned names like Latonya and Jermaine. The testers recorded their experiences in meticulously structured reports.

For example, in one test, “Lakisha,” a Black tester and a Suffolk Law student, met with an agent to view an apartment. He did not offer her a rental application and did not mention any additional, unadvertised units.

However, when “Allison,” a white tester and also a Suffolk Law student, met with the same agent, he offered her a rental application before she even entered the apartment, and told her after the viewing that he wanted to show her an additional unit. He went on to explain “they don’t advertise that apartment because then they would have to respond to everyone who inquires” and they were looking for “people with quiet lifestyles who work, not CEOs necessarily, but people with good jobs.” He invited Allison to join “a select group” that would tour the unadvertised unit the following day.

A “hollow” promise

“The promise of the Section 8 program is a hollow one if a voucher holder is turned away from renting a property nine out of 10 times just because they are trying to use a voucher—and this in a state where this kind of discrimination is explicitly illegal. A person can’t hope to use a voucher for upward mobility under these conditions,” Professor Berman says.

“Housing is the most basic of necessities,” he adds. “Where you live impacts your health, your access to education, and economic opportunities. The fact that such a high level of race discrimination exists in our community is a disgrace and acts as a barrier to opportunity that must be removed.”

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Jamie-Langowsk-and-William-Berman 

Suffolk Law leaders in housing reform, from left, Jamie Langowski, assistant director of the Housing Discrimination Testing Program (HDTP), and William Berman, Suffolk Law professor and director of the HDTP.

John Infranca 

Suffolk Law Professor John Infranca, a housing and land-use expert.


ADDRESSING THE AFFORDABILITY CRISIS

A separate but related problem for those who seek affordable housing is that there simply isn’t an adequate supply, says Suffolk Law Professor John Infranca, a housing and land-use expert.

In Massachusetts, and across the country, neighborhood activists in lower-income and working-class communities and residents of wealthy towns are both fighting against the development of new and dense multi-unit housing, says Infranca.

When it comes to these large apartment complexes, residents of wealthy towns often point to concerns about traffic and contend that schools and town services will be overburdened. While in some cases these concerns may have merit, they also reflect a longstanding tradition of NIMBYism (not-in-my-backyard), Infranca says, and sometimes personal prejudice. Some people, he says, won’t admit that prejudice against Black renters and voucher holders is a key reason why they stand against multi-story developments with affordable housing. But, as the recent HDTP study makes clear, racial prejudice remains alive and well.

Meanwhile, anti-gentrification activists in blue-collar towns argue that new housing complexes will increase housing prices, alter neighborhood demographics, and displace current residents.

Infranca set out to better understand the fiery opposition in the Bay State, and across the country, to proposed changes in zoning laws, the substance of new laws that have passed in certain states, and a potential route forward. He is focusing his scholarship on related issues.

In November 2019, he organized a two-day national roundtable where leading academics, policy makers, and advocates from across the country discussed recent housing and zoning reform efforts. Speakers directly involved with reforms in California, Oregon, and elsewhere discussed lessons learned and potential roads forward in Massachusetts and beyond.

Last spring, he learned he was among just 16 professors to receive one of the country’s top legal academic honors for junior faculty, an invitation to present his research at the Stanford/Harvard/Yale Junior Faculty Forum. His paper, “Differentiating Exclusionary Tendencies,” is forthcoming in the Florida Law Review.

Build it or not, they will come

The version of gentrification that has solidified in popular culture, usually including images of hipsters sipping lattés, suggests certain truths, Infranca says, but his research points to a different conclusion than that of many anti-gentrification activists. He contends that gentrification is largely caused by demand—not new supply.

People who can’t afford to live in Boston’s South End or Jamaica Plain, for example, will move into less expensive neighborhoods in Roxbury and Hyde Park whether developers build new housing or not, he argues. If no new housing stock is available, that means more competition for existing units, housing prices rise even more rapidly, and there’s even more displacement.

Infranca points to a study by Lance Freeman, a Columbia University affordable housing and urban planning expert, which shows that people in gentrifying neighborhoods don’t move out of their apartments more often than people do in persistently poor neighborhoods.

Regardless of their neighborhood, low-income individuals tend to move a lot, Infranca says. “What’s different is who moves in when people move out, and in gentrifying neighborhoods it tends to be more affluent, oftentimes white residents moving in. So, if all that is true, new housing supply by itself is not going to lead to higher levels of displacement.”

Instead, he argues, new housing supply should help keep housing prices from skyrocketing.

If we fail to increase the pace of new development, we risk moving in the direction of the San Francisco area, he warns, noting the images many have seen on television. In Palo Alto, California, in the heart of Silicon Valley, news crews document battered RVs and scruffy cars lining the main road next to Stanford University, makeshift living places for workers who can’t afford the area’s hyper-expensive housing.

Greater Boston, facing its own affordable housing crisis, has significant parallels with the San Francisco area, he says. Both have limited new development—even as their technology, health, and other hot job markets continue to attract affluent workers willing and able to pay top dollar for rent or home ownership.

“That combination has resulted in massive housing price increases and evictions. The status quo of too much demand and too little new housing supply is not going to work, and we’ve seen it play out. It’s clear we need to figure out some creative approaches.”

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Looking to the future

In many cases, Infranca says, longstanding zoning laws effectively limit the construction of new housing. Suburban towns, for instance, with zoning that mandates single-family homes on sizable lots, make it difficult, if not impossible, for new, denser housing to be built that might increase affordability. That in turns limits opportunities for new residents to move into those communities—and often exacerbates existing discrimination against people of color.

In Oregon, a recent state law requires cities with more than 10,000 people to allow duplexes in areas zoned for single-family homes, a concept called upzoning. In California, there’s a movement to upzone across the state, Infranca says.

Such state upzoning measures—some of which prohibit exclusively single-family zoning and others that would permit denser, multi-family housing near transit hubs—are worth considering, he argues, but controversial. Efforts along these lines have found limited traction in Massachusetts.

Should low-income communities have greater say regarding development?

In his paper, Infranca examines whether low-income neighborhoods should have a greater degree of control over new development than very affluent communities do.

There are a few critical reasons to consider doing that, he argues, including the historical injustices faced by these neighborhoods: redlining, discrimination, and disinvestment. Additionally, low-income communities generally have a high proportion of renters. The time commitment and costs of finding a new affordable rental is harder to bear for a lower-income person than for someone who is higher income, he says.

Infranca also points to Suffolk’s recent rental housing discrimination study, which uncovers additional obstacles faced by voucher-holders and Black renters.

He concludes that treating certain neighborhoods differently than others makes sense as a way to target a narrow subset of gentrification concerns, including the claims of long-term residents to a stake in their neighborhoods. Infranca also suggests coming up with new ways to grant long-term residents of low-income communities a financial interest in development.

One option, his paper argues, would grant property owners and long-term tenants development rights they could sell to a nearby property. This would permit the purchaser to build a higher-density development, while giving residents a financial stake and some degree of control over new development in their community.

An industry perspective

Dean’s Cabinet member Jeffrey R. Drago JD’04, a partner at Drago & Toscano, a Boston zoning/permitting law firm that represents developers seeking to build large and small residential and commercial buildings, agrees with Infranca that higher-density development is part of the solution.

“In many cases we go out to start community processes in a neighborhood and folks will say it’s too dense or too high or not enough parking. However, if you want to address affordability, you need to allow for larger-scale development,” he says. “Then the municipalities can ask the developers for more affordable units in return. With a greater supply, the demand will also go down.”

HYM Investments LLC, founded by Boston developer Tom O’Brien JD’93, is overseeing the redevelopment of East Boston’s Suffolk Downs. The project increased the required 13% affordable housing to 20%—the highest feasible amount, according to O’Brien.

“We have two options: we can build a development that includes up to 20% of affordable housing or we cannot build the project at all—it’s a pretty stark choice, unfortunately,” he says. “We need a national initiative to go and build more housing and make that housing affordable to more people.”

New affordable units are important, but equally important is equity, says HDTP director William Berman. He has been surprised by the vehemence of opposition to affordable housing in Massachusetts, and the veiled and not so veiled suggestions of race and class that go along with that: “That vehemence comes with a significant cost to the community, in that economically we can’t promote growth if we don’t have access to affordable housing.”

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Suffolk University Boston Law School 
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