Each year teaching Property Law, I have taught many of the big cases and topics on race and property law, such as M’Intosh and Dred Scott; segregationist turbulence in rights of reasonable access; public accommodations law; racially restrictive covenants; the Fair Housing Act. I never quite had a cohesive idea about this—they each seemed formative.
Meanwhile, evolving case law and politics have made it clear that we still have a basic disagreement at the heart of American law and politics, and my students carry that question with them into class: On matters of race, did we reset the playing field of property to start a merit system where fair access to markets would govern? Did we create a new Time Zero—for instance, when LBJ signed the Fair Housing Act as a gesture of solace and appeasement seven days after Martin Luther King, Jr.’s assassination?
As it happens, performance artist Taylor Mac (who uses “judy,” lowercase, as a gender pronoun) demonstrated a vivid way to draw some of this material together and set class up for a direct discussion of these questions. The technique comes from Mac’s magisterial 24-hour history of 240 years American Music. Angela Harris wrote about the performance powerfully for the LPE Blog, so you should cut away here and follow this link for her larger context of the show.
In the production, Mac enacted the postwar period, in which millions of Americans mobilized federally subsidized mortgages and infrastructure to move to new suburbs at the urban periphery, or to new cities in the right-to-work South. Mac asked all white members of the audience to stand up and move to the side aisles—our metaphorical suburbs. The vast majority of the audience, including me, left their seats and spent the next two decades of musical chronology standing to the side. Mac invited people of color in the audience to move around and take any seat they wished.
I have reenacted this in Property Law after teaching Shelley v. Kraemer, and just before teaching the FHA, by asking students “who identify as white” to get up and move to the sides of the classroom, dating their absence from our model city as approximately from the 1940s to the 1990s (plus or minus, depending on the place). I offer the disclaimer that not all people who would identify as white today would have fit comfortably in that label in the 1940s or even later, and some groups left central cities later than others. The key for our purposes is that those who now identify as white did tend to leave America’s industrial cities sooner or later.
Stylized as a city, the exercise offers a visual for the era just before and after the purported Time Zero of the Civil Rights Era. In all those empty seats, we can visualize the demand curve for housing plummet. We can imagine and discuss those seats as empty houses across the decades to come—their roofs buckling in after years of neglect, access to mortgages flatlining as lenders refused to issue loans there. We can see the wide swathes of open seating that stand for the industries that left too, removing the jobs that the remaining households of color relied on and leaving behind contaminated properties. The city’s shrunken property tax base is in stark relief, as is the fiscal disaster of a smaller public carrying the pensions for the teachers and cops and snowplow drivers that we in the aisles relied on when we lived there.
At this point, if we are picturing manufacturing capitals like Detroit, Pittsburgh, or Buffalo, the job base has collapsed so dramatically that they stop attracting many newcomers. In these cities, the remaining residents’ water bills go up, as their water and wastewater systems require higher energy usage to move water around in a system designed for more users. We can see all the homes, businesses, and industrial properties that departed owners will not just physically but legally abandon—thus shifting the costs of site maintenance, building demolition, and site decontamination to the public sector in the old city. If we’re picturing a more diverse economy with a larger service sector like NYC, Boston, or San Francisco, new immigrants displaced by war, dictatorships, and poverty abroad will keep arriving to keep the population relatively buoyant, but the bloodletting of the city’s wealth, capital, upwardly mobile jobs, and tax revenue from the 1960s to the 1990s will leave those new residents and their local governments more poor.
The exercise also offers a way to talk about what’s going on in newer cities and suburbs. The mortgage-interest tax deduction; the public and private discrimination that kept African-Americans, Latinos, Filipinos, and others out of those suburbs; the investment of federal and state tax revenues into fresh infrastructure for schools, water treatment, natural gas lines, parks, and libraries, while those same facilities reach the end of their useful life back in the old cities. (Richard Rothstein’s comprehensive 2017 book The Color of Law brings all these measures into stark relief in cities across the country.)
A Property Law version of Mac’s metaphor lets you bring it into the present, from the late ‘90s to today. In the show, Mac set a rule that whites could return to their seats, but they could not reclaim their original ticketed chair if it was now occupied by another person. Abandonment, that is, forfeited the right of return to the same spot. That rule conveyed judy’s view of fairness, but of course that’s not how markets and buying power work. In real life, the accelerated, subsidized wealth accumulation of suburban households meant that upon return, the children of these suburbs wielded not only the power of education from their newer, better-funded schools, but also additional family wealth. The only people who could resist being kicked out of their homes when cities became popular again were owners with clean title and affordable carrying costs—not tenants (except a few in NYC), and not owners who had been duped by a costly subprime mortgage. When I did this exercise with a class of undergrads, one African-American woman captured these gentrification dynamics well: “You’re in my community garden!” she quipped when her white friend returned to her seat. If she were a tenant, she could be gone too. A market rewards wealth, and the right to build wealth and opportunity through housing has never reset to Time Zero.
Whether using this exercise or Rebecca Tushnet’s compelling and tangible racial zoning material, I think Property Law is a chance to discuss to what degree the housing reforms of the Civil Rights Movement had the power to open transformative channels of neighborhood opportunity. Students can explore this question empirically with Patrick Sharkey’s 2013 book Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality, and the answer is as troubling as the classroom exercise.
Like many things about race in America, this exercise is not comfortable. I feel physically nervous when I teach it, and many students look shocked to be asked to declare their race and act upon it. But if I think of my job as being a teacher, I can’t imagine anything that could do so much—so visually and so quickly—to represent the legal history of the racial wealth gap.
This post is part of our ongoing “1LPE” Series on bringing the LPE approach to the 1L curriculum. Click here for more posts in the series.
