Fighting Gentrification: Litigation is Not “the Only Source of Support”

Harlem is a cultural Mecca for Black America, giving birth to some of the most celebrated musicians, artists, writers, and activists in history. However, as Columbia University grows larger and larger in its population and wealth, it has been looking to expand further into West Harlem. This expansion threatens the important history of Harlem and its residents, as the community, which would be displaced by further encroachment, is what makes Harlem, Harlem. Many Harlem residents fear that the expansion of Columbia’s campus, in addition to destroying several acres of historic buildings, will cause an influx of higher income residents, increasing rent prices and pushing out many of the Black and brown residents who have lived in Harlem for generations and depend on affordable housing. Harlem is just one of many lower-income neighborhoods of color facing the reality of gentrification at the hands of municipal governments and private developers, begging the question of if and how the legal system might protect marginalized communities from the whims of the rich, white, and powerful.

The 1968 Fair Housing Act, passed days after the assassination of Dr. Martin Luther King Jr., has historically been the means through which gentrifiers are fought in the justice system. [1] However, in recent years, the Act, a law meant to shield marginalized communities from disposession and discrimination, has been stripped of its powers due to Supreme Court cases such as Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. (2015) and Kaur v. NYS Urban Development Corp (2010). [2] Thus, in the case of Columbia University’s gentrification of Harlem, given the nature of the courts’ decisions in Kaur and Inclusive Communities, the Fair Housing Act can no longer  guarantee affordable housing for communities of color fighting gentrification efforts. Moving forward, rather than relying on a punitive legal system, which rarely results in justice for communities of color, activists should use Community Benefit Agreements (CBAs), a restorative tool that can empower communities of color to protect themselves against gentrification.

When Columbia University began plans to initiate its Manhattanville expansion, controversy surrounded every aspect of the plan, specifically regarding the university’s use of the Fifth Amendment’s Takings Clause. The Takings Clause allows governments to seize private property for public use in exchange for compensation. [3] Over the past several decades, public use has been expanded by the courts to justify eminent domain: a process by which the government can seize private property and then sell it to private developers if it serves a “public use.” [4] Eminent domain is often invoked by claiming that an area is “blighted” and needs economic revitalization, private development being the solution. While a universally used definition of “blight” is difficult to find, the U.S. Government Accountability Office’s definition of blight—derived from eminent domain laws in many states—is the “condition of a property or area that is detrimental to the physical, social, or economic well-being of a designated area.” [5] The vagueness of this definition can be viewed as intentional on the part of the Court, for the New York State Court of Appeals stated in the Kaur decision that “blight is an elastic concept that does not call for an inflexible, one-size-fits-all definition.” [6]

Indeed, Kaur v. NYS Urban Development Corp (2010) was a  particularly disastrous case for the victims of gentrification that allowed Columbia University to seize land from low-income communities of color. When plans for its Manhattanville campus, located from 125th to 133rd St between Broadway and 12th Ave, were first presented, Columbia University claimed that it would not invoke eminent domain. However, when two small, locally owned Harlem businesses refused to sell to the university, Columbia promptly changed its previous position, invoking eminent domain to forcefully seize the land. [7] As a result, Parminder and Amanjit Kaur, residents of Harlem and owners of some of the land which Columbia was attempting to seize, filed a case against the New York State Development to prevent their land from becoming eminent domain. In order to invoke eminent domain, New York City’s Economic Development Commission (EDC) ruled that the residents must sell their land to Columbia University after conducting studies which “proved” that Manhattanville was situated in an  economically blighted area of West Harlem. In its report, the EDC stated that the area presented a “series of substandard and deteriorated conditions applicable to a majority of its buildings and lots,” indicated by “bleak streetscapes lacking windows and transparency, ubiquitous roll-down gates, frequent graffiti and garbage, and an almost complete lack of trees and vegetation.” [8] 

Even if the EDC’s assessment is taken seriously, a larger question arose from this case: does a private university’s desire to create a new campus serve private use, or public benefit? The New York State Court of Appeals ruled that Columbia University’s Manhattanville campus would have public benefit, creating jobs and facilitating research that would help Harlem and the city more broadly. This decision was extremely consequential for gentrification efforts across the country, because Kaur held that private institutions could seize land from other private citizens in the name of any sort of community benefit or public use—even if such benefit is not the institution’s primary motive for expansion. [9] Furthermore, the EDC’s statements make it apparent that blight is largely determined through the aesthetics and economic value of neighborhoods, which does not necessarily reflect the cultural and emotional significance of communities for community members themselves—as is the case for Harlem. Thus, Kaur shows that “public use” can be manipulated to serve white aesthetics and white conceptions of cultural and economic significance, hurting communities of color like Harlem.

Historically, gentrification has been successfully challenged through litigation under the Fair Housing Act, as well as states’ individual constitutions. For instance, the outcome of Southern Burlington County NAACP v. Township of Mount Laurel (1975), a case similar to the current situation in Harlem, offers hope for Harlem’s future. [10] The Township declared that Mount Laurel was underutilized, and thus hoped to “redevelop”—in other words, gentrify. However, the Southern Burlington County NAACP successfully argued against the redevelopment through a stipulation of the State of New Jersey’s constitution, which stated there must be a “fair share” of moderate- to low-income housing provided in municipalities. The Supreme Court of New Jersey mandated that the Township of Mount Laurel provide more affordable housing to its citizens, preventing its mass gentrification efforts. However, this method of fighting gentrification is dependent on individual states’ constitutions codifying protections for affordable housing, which is not always the case. [11] Thus, while Southern Burlington County NAACP provides a possible route for fighting gentrification, the success of this approach to litigation cannot be guaranteed across the country.

Another, more universalized, legal apparatus is Section 3604 of the Fair Housing Act, which states that it is unlawful to “to refuse to sell or rent [housing] to” any person “because of race.” This section of the Fair Housing Act has been used in litigation against gentrification through arguments that there would be a “disparate impact” on people of color through the destruction, removal, or lack of access to affordable housing caused by redevelopment. [12] The disparate impact claim was used in Mount Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly (2013) to argue that the Township’s redevelopment of Mount Holly would have a racially disparate impact on the citizens of the town. While the case was going to be argued in the Supreme Court, the two parties settled prior to their day in court, leaving people to wonder how successful the disparate impact claim would have been in the highest court of the land. [13] However, there is no need to look far, as the Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. (2015) picks up where Mount Holly left off.

In Inclusive Communities, the disparate impact claim was successfully used by the Inclusive Communities Project, who proved in court that the Texas Department of Housing and Community Affairs’ Low Income Housing Tax Credits were being disproportionately distributed to communities of color. As a result, the majority of low income housing was consolidated in neighborhoods of color, leading to de facto segregation. In their decision, the Supreme Court asserted that low income housing being strategically placed in communities of color creates a resegregated community. The Inclusive Communities decision also showed that disparate impact can be used against gentrification as well, as a petitioner would be able to sue for any actions that would resegregate a community, including the removal of affordable housing through private development.

While the Supreme Court ruled in favor of the Inclusive Communities Project, the majority opinion held immense consequences for the future of disparate impact cases, placing a stronger burden upon the petitioner to prove a “robust” relationship between the actions of the respondent and a disparate impact on housing for marginalized groups. [14] This decision is a large departure from the historical use of disparate impact, which required the respondent to prove that their actions will not have a disparate impact.  Thus, disparate impact seems to be the most natural route when litigating the gentrification of Harlem, as affordable housing in NYC is primarily occupied by Black and brown residents; as such, the destruction of housing units resulting from Columbia’s expansion would have a disparate impact on people of color’s access to affordable housing. However, given the ideological makeup of the current Supreme Court bench and the precedent set in Inclusive Communities, it is extremely unlikely that a disparate impact claim would be successful, forcing activists to find other methods with which to fight gentrification. 

One possible and essential solution would be increasing  community input in redevelopment projects through CBAs. CBAs offer a restorative justice approach to preventing displacement, as well as offering compensation to community members who would be affected by the redevelopment. CBAs are generally created by community-appointed councils and developers and are legally enforceable contracts between the two parties. [15] These contracts can be a more productive means of preventing gentrification than litigation because they are preemptive and can prevent communities from being hurt by gentrification before it happens. CBAs are a recent development in the history of gentrification conflicts; the first one was proposed and created in 2001 due to the proposed expansion of the LAX airport. [16] These agreements generally do a better job of voicing and negotiating the concerns of the community, as people are given the power to speak for themselves. 

The disconnect between courts and community members can be explained through Audre Lorde’s argument in The Master’s Tools Will Never Dismantle the Master’s House; Lorde critiques white feminist academia for trying to fight patriarchal establishments through academia. Similarly, it can be argued here that counter-gentrification movements cannot solely rely on the validation of the racist legal system to combat institutional racism and classism. Academia and the legal system can be seen as parallels, as both limit the scope of liberatory movements by subsuming them into their racist and classist systems. [17] CBAs, while not completely free of the American legal framework, are able to empower community voices much more than legal methods for fighting gentrification. 

Since CBAs are enforceable contracts, they give communities the power to hold developers accountable themselves, and to make demands for their own communities, such as redress. Redress can manifest in many ways in CBAs, from the maintenance or expansion of affordable housing, to the maintenance of locally owned businesses and cultural centers, to the funding of local schools. These are far from perfect: Harlem had a CBA with the University prior to the building of Manhattanville, which was unable to properly hold Columbia accountable. The failures of West Harlem’s previous CBA largely lay in the fact that redress payments were going into a community benefits fund, while the agreement failed to ensure that money from the fund would go to businesses, housing, education, and other projects beneficial to the community. [18] Thus, over the years, individuals in power could determine where the money would go, rather than a binding agreement dictated by the community itself. West Harlem’s CBA may not have been successful just a few years ago, but it is very possible to build a stronger, more enforceable, and more community led agreement that could protect Harlem against future gentrification measures.

As Columbia University grows, increasing its student body and creating new graduate schools, it is safe to assume that Columbia will want to expand further into Harlem, exercising the powers of eminent domain as it did with the Manhattanville campus. [19] Meanwhile, despite its purpose being to shield marginalized low-income communities and communities of color from being forced out of their homes and neighborhoods, the Fair Housing Act does not go far enough to protect these groups. It has, rather, been stripped of its powers to fight gentrification due to the Supreme Court’s redefining of disparate impact claims in Inclusive Communities. 

The Court’s actions once again expose the fact that the justice system was never built to protect marginalized peoples, especially communities of color. The actions of the court prove just how elastic America’s racial hegemony can be. Despite the Fair Housing Act being a champion for housing equality and equity in civil rights legislation, the American legal system’s racist tendencies shine through once more, stripping it of its powers to protect those basic civil liberties for marginalized communities such as Harlem’s. One is reminded once again of Audre Lorde’s words, for communities of color cannot evidently rely on the justice system nor on legislation to guarantee them freedom, equality, or protection. Ultimately, communities of color must be invested with power themselves through restorative justice measures, such as adopting CBAs. 

Justice necessitates centering marginalized communities. The problem of Columbia University in Harlem once again exposes deep-rooted issues in the justice system that bends to the whim of the rich and powerful, rather than protecting those who are being subjugated by them. If the traditional legal system can’t deliver beyond a facade of justice for marginalized communities facing displacement, we must construct forms of liberation and justice outside colonial structures we’ve been born into. Restorative justice tools like CBA’s that empower marginalized people to preemptively protect themselves and elevate the needs of individual communities are an essential part moving away from a punitive legal system that often does too little, too late for victims of injustice. Once again returning to the words of Audre Lorde, the master’s tools cannot be the “only source of support”. [20]

Note from the Author: As a student at Columbia, I have noticed a certain rhetoric from the student body that by simply discussing Columbia’s gentrification of Harlem, it absolves us of our role in the problem. As Columbia University students, many of us are complicit in gentrification by even just choosing to attend this university and we are not absolved of our complicity through articles like this one. Columbia must do better and we must too. Listen to Harlem residents; if you come from a position of privilege and/or wealth: donate your money, your time, your resources. It’s a long uphill battle to fight Columbia’s continued gentrification and over-policing of Harlem through legal action, but we can take restorative action ourselves now.

Edited by Genevieve Cabadas

Sources:

[1] Fair Housing Act, 2 U.S.C. §§ 3601 - 3619

[2] Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015); Kaur v. New York State Urban Development Corp., 15 N.Y.3d 235 (2010).

[3] “Amendment 5.1.1 Takings Clause: Overview.” Library of Congress. https://constitution.congress.gov/browse/essay/amdt5_5_1_1/. 

[4] Ibid.

[5] “Eminent Domain: Information about Its Uses and Effect on Property Owners and Communities Is Limited.” 3, United States Government Accountability Office (2006). https://www.gao.gov/assets/gao-07-28.pdf. 

[6] Kaur v. New York State Urban Development Corp., 15 N.Y.3d 235, 13 (2010).

[7]  Chan, Sewell. “Columbia Will Not Seek Eminent Domain to Oust Tenants.” The New York Times (2007). cityroom.blogs.nytimes.com/2007/07/12/columbia-will-not-seek-eminent-domain-to-oust-tenants/?pagemode=print;  

Bell, B. A. . “From 1890 to Today, Nothing’s Changed: Gentrification in Harlem and the Abuse of Eminent Domain” 17, Bard Digital Commons (2016). 

[8] “Manhattanville Neighborhood Conditions Study.” New York State Empire State Development, (2008). https://cdn.esd.ny.gov/subsidiaries_projects/data/columbia/additionalresources/neighborhoodconditions-earthtech/Manhattanville1-76.pdf. 

[9] Kaur v. New York State Urban Development Corp., 15 N.Y.3d 235 (2010).

[10] Li, Bethany. “Now Is the Time!: Challenging Resegregation and Displacement in the Age of Hypergentrification.” 1230, 85 Fordham Law Review, 2019. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3331415. 

[11] Weinstein, Hannah. “Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification.” 816-817, 62 UCLA Law Review, 2015. http://www.uclalawreview.org/pdf/62-3-5.pdf. 

[12] Ibid at 823.

[13] Ibid at 830, 831.

[14] Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 3, 20 (2015).

[15] Werkneh, Meron. “Retaking Mecca: Healing Harlem through Restorative Just Compensation.” 256, Columbia Journal of Law and Social Problems (2011). http://ezproxy.cul.columbia.edu/login?url=https://www.proquest.com/scholarly-journals/retaking-mecca-healing-harlem-through-restorative/docview/2026328409/se-2?accountid=10226 (accessed November 29, 2021).

[16] Ibid at 259.

[17] Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House (Penguin Classics, 2018).

[18] Werkneh, “Retaking Mecca: Healing,” 264-269; Shternfeld, Arielle. “Ten Years Ago, Columbia Pledged $76 Million to Local Nonprofits. What Happens When It Runs out?” Columbia Daily Spectator (2018).  https://www.columbiaspectator.com/the-eye/2018/10/08/ten-years-ago-columbia-pledged-76-million-to-local-nonprofits-what-happens-when-it-runs-out/.

[19] Bell, “From 1890 to,” 22, 23; Foster, Sheila. “Columbia University Expansion into West Harlem, New York City.” 144, Unhabitat (2018). https://unhabitat.org/sites/default/files/download-manager-files/NYC%20Case%20Study.pdf.; Gill, Dia; Schermele, Zachary. “In the Wake of Pandemic Losses, Administration Explores Undergraduate Expansion.” Columbia Daily Spectator (2021). https://www.columbiaspectator.com/news/2021/08/27/in-the-wake-of-pandemic-losses-administration-explores-undergraduate-expansion/?fbclid=IwAR1X0jwoBY04EONcH8mXPKREyevPxt4Ri4ECaBvz1leSVeD7DxfGwE5NGP8.; Bollinger, Lee. “Announcing the Columbia Climate School.” Office of the President, Columbia University (July 10, 2020). https://president.columbia.edu/news/columbia-climate-school-announcement.

[20] Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House (Penguin Classics, 2018), 27.