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Beyond Access to Justice: Challenging the Neoliberal Roots of Hyper-Gentrification


John Whitlow (@zhionny74) is an Associate Professor at CUNY School of Law, where he co-directs the Community and Economic Development Clinic.

New York City recently became the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of eviction. This was an important step in the fight for equal access to the courts, and a significant victory for tenant advocates who had waged a decades-long campaign to ensure fairness for people on the verge of losing their homes. I cut my teeth as a New York City tenant attorney in the early 2000s, when the right to counsel felt closer to a pipedream than a reality, and I can say unequivocally (and uncontroversially) that providing tenants with a lawyer when they enter the maw of housing court is a good thing. At the least, it will keep landlord attorneys and judges on their toes and reduce the stress and trauma tenants feel when navigating a byzantine system on their own. At the most, it will allow people to mount robust defenses and save their apartments, in the process preserving some of New York’s evaporating supply of affordable housing. But I can also say that it is not nearly enough to derail the hyper-gentrification that has been a through line of recent economic development policy and has its roots in the fiscal crisis of the 1970s.

In the context of an over-heated housing market, the right to counsel should be viewed as a limited intervention that operates when eviction is imminent, i.e. after the structural sources of displacement have done their work. Failure to recognize the limits of the right to counsel – and of access to justice paradigms more generally – naturalizes those structural sources and legitimates as normal the widening inequalities produced by our current political-economic and social order. Challenging inequality and displacement in a deep and lasting way requires moving beyond access to justice and critically engaging the core tenets of market-driven urbanization.

The tidal wave of hyper-gentrification has radically changed the race and class composition of many of New York City’s neighborhoods, leaving familiar places nearly unrecognizable from one year to the next. When I left New York three years ago, the city was already a starkly divided and unequal place: a workhouse for the poor, who slog their way to increasingly precarious, low-paying jobs and pay an outlandish percentage of their paychecks on rent, and a pleasure dome for the rich, who sit at the helm of a rigged, financialized economy and reside in gilded neighborhoods that were once home to the city’s multi-ethnic, multi-racial working class. In the short period between my departure and my recent return, the situation has visibly worsened. A quick stroll around luxury condo-laden Long Island City, Queens, where I work, or tony Clinton Hill, Brooklyn, where I live, is confirmation of the jeremiad, put to paper in Jeremiah Ross’s impassioned Vanishing New York, that the city has lost its soul, having been transmogrified into a place replete with absences – “the shops that have gone missing, … the exiled poets and painters and dancers, the lost men and women who fixed cars and made sawdust and poured the best cappuccino” (8). These absences, as Moss refers to them, are the byproduct of a neoliberal policy paradigm that prioritizes market-based solutions to social problems and concentrates wealth, while relegating redistributive and due process initiatives to its margins.

The current crisis of hyper-gentrification can be traced back to the 1970s, when New York City teetered on the edge of bankruptcy. In the years leading up to New York’s fiscal meltdown, the city was home to a network of institutions – public housing, rent regulation, public hospitals, public university system, municipal labor unions – that together formed what historian Joshua Freeman has called a social democratic polity. Though not without its problems – particularly around issues of racial exclusion – the city’s relatively dense social welfare system offered New Yorkers a number of substantive social rights: significant labor protections, a range of affordable housing options, and free and open university admission.

At the time the fiscal crisis broke out, suburbanization and deindustrialization had already diminished New York City’s tax base, and the municipal government had resorted to the bond market to raise funds to maintain social spending. In 1975, with the city no longer able to meet its obligations, the major lending institutions acted concertedly to turn off the bond spigot, forcing a choice between bankruptcy and austerity. In a dramatic series of events that included a fruitless plea for a bailout from the federal government (see the famous Daily News headline, “Ford to City: Drop Dead”), austerity won out – in a move that presaged recent events in Greece and Puerto Rico, New York City was granted a reprieve from bankruptcy in exchange for drastic cuts to the institutions and programs comprising the social democratic polity. This was operationalized through the creation of state-run emergency control boards that siphoned political sovereignty from New York City to Albany.

In short, New York City’s fiscal crisis was resolved in a manner that fundamentally altered the balance of class forces in the city and the state, while at the same time shifting the common sense assumptions of effective governance. The crisis ‘settlement’ shrank the municipal welfare system and weakened the power of organized labor, while at the same time enhancing the power of elite financial interests and bond holders. When the dust settled, blame for the city’s dire economic predicament was distorted and racialized by politicians and media outlets, as black and brown residents and a largely minority municipal workforce were cast as undeserving beneficiaries of profligate social spending. At the broadest level, the resolution of the crisis assailed the political-economic and governance framework that had been hegemonic across the industrialized world since World War II, striking a blow at the widely-held notion that a redistributivist state could preside over continuous economic expansion. In all these ways, according to David Harvey, New York City in the 1970s was a staging ground for the neoliberal transformation of American society under Reagan in the 1980s and Clinton in the 1990s.

The political-economic and governance framework that emerged from the fiscal crisis in New York City called for market-based solutions to social problems and austerity and a loss of local control vis-à-vis the institutions of the social democratic polity. In the sphere of housing, New York’s system of rent regulation, a vestige of the federal price control regime implemented during World War II, was on the chopping block. In 1971 – in an event that prefigured the government rescaling that took place in the wake of the fiscal crisis – the State Legislature responded to the New York City Council’s expansion of tenant protections by passing the Urstadt Law, which removed the city’s home rule over its supply of rent-regulated housing. In the years following Urstadt’s passage, rent stabilization, the city’s most prevalent form of affordable housing, was weakened by a raft of legislatively-created loopholes that allow for apartments to be removed from the system. Between 1994 and 2012, the city lost 152,751 rent stabilized apartments, with 74% of the losses directly attributable to these legislative loopholes. The loss of so many rent stabilized apartments is notable because empirical evidence suggests that New York’s rent regulations reduce monthly rents significantly – a 2008 study, for example, found that rent regulations reduced monthly rents by an average of $458.

In the absence of local control over rent regulation and in an age characterized by the market-friendly common sense of neoliberal governance, successive mayoral administrations, including the current, self-avowedly progressive administration of Bill de Blasio, have dealt with the city’s crisis of affordable housing through programs that incentivize private real estate development. One such program is inclusionary zoning, which allows for-profit developers to build above preexisting zoning limits in exchange for a set-aside of below-market units. The de Blasio administration has also incentivized private developers to build affordable units through the provision of public subsidies. In 2014 alone, three private developers received over $1.1 billion in public money, only to build the bare minimum of truly affordable apartments.  According to Samuel Stein, the major problem with these market-facilitative projects is that they marshal “a multitude of rich people into places that are already experiencing gentrification,” thereby driving up land values and rents. In other words, the prevailing, market-based mode of addressing the city’s crisis of affordable housing actually tends to exacerbate the problem. And a serious problem it is: between 2002 and 2012, median apartment rents – both regulated and unregulated – in New York City rose by 75 percent, compared to 44 percent in the rest of the country, leaving half of all New York renters rent-burdened.

As government action has come to be constituted principally along market-facilitative lines, notions of justice and citizenship have undergone a commensurate narrowing. Access to procedural fairness serves as a stand-in for substantive social rights (e.g. the right to a dignified standard of living or to decent housing, irrespective of market forces). This leads to a perhaps overly pessimistic take on the right to counsel – i.e. that by offering ‘access to justice’ at the point of eviction, the program naturalizes the structural causes of displacement. While this take may resonate with the housing policy of the current mayoral administration, thankfully it does not resonate with the work of a number of the tenant groups that have advocated for the right to counsel and are also moving beyond it. These groups – embedded in neighborhoods across New York City – are organizing to build solidarities among tenants, and are fighting for policy interventions that challenge the core precepts of market-driven urbanization – chief among them the notion that the crisis of affordable housing can be solved by reliance on for-profit development.

What is at stake in the current moment is nothing less than the dynamism that makes cities like New York laboratories for social change and cultural innovation. In Vanishing New York, Moss states that the demise of the city he mourns is a story not of a death but of a murder. The hyper-gentrification of New York City has not unfolded by happenstance or been conjured up by forces beyond our control; rather it has been produced by concrete policies and programs that have issued from the paradigm shift that occurred in the 1970s. If the tide of hyper-gentrification is to be turned back – if New York is to stop vanishing – then it needs to be remade according to the needs and desires of the millions of poor and working class people who live there. This requires a critical engagement with the political-economic and governance paradigm of neoliberalism. If the latter was born in New York City, as Harvey says, it would be fitting for its dismantling to begin there.