:: By Laura Stuart

Investigations ::

When a house hunt in exurban Chicago took Law School assistant professor Lior Strahilevitz to several developments that had recently replaced farmers’ fields, their lack of racial diversity struck him. How, he wondered, does such homogeneity happen in young communities unburdened by neighborhood patterns of segregation, where first-generation buyers have no way of knowing who else will be living there?

Poking around, Strahilevitz discovered an “enormous boom” during the 1980s and early ’90s in residential developments built around private golf courses, even though “golf participation was more or less flat.” Suspecting that the choice of golf, with its country-club history of racial exclusivity, “might not be an accident,” Strahilevitz has since concluded that building a golf course into a subdivision can be a strategy to engineer a development’s racial composition—without running afoul of antidiscrimination laws.

Although he bought a home closer to campus in Chicago’s South Loop, Strahilevitz, a property and land-use specialist who earned a 1999 JD at Yale, remained intrigued by golf communities. As he sees it, the racial makeup of new residential developments raises issues of the “foundational right” in property theory: an owner’s power to keep others out. In legal parlance it is called the “right to exclude,” and traditionally it is protected by trespass law, which allows an owner to call the police to remove an uninvited person. But trespass law doesn’t address what Strahilevitz observed—exclusionary tactics used to create racially homogenous communities. Because the legal theory doesn’t match the current reality, Strahilevitz proposes expanding the theory. In two 2006 articles in the Virginia Law Review and the Michigan Law Review, and in the Rights to Exclude, a book due out in 2008, he calls for redefining the right to exclude beyond trespass law.

Under traditional trespass-based law, an owner has what Strahilevitz calls a “hermit’s right” to keep everyone out and a “bouncer’s right” to allow some in while turning away others. But nontrespass–based rights achieve the same results, he argues, by inducing “undesirable residents” to exclude themselves. One such strategy, which Strahilevitz dubs an “exclusionary vibe,” is a communication from the seller about the character of the community’s residents that signals who is welcome and who isn’t. To create a community of extroverts, for example, a developer might name a subdivision “Social Butterfly Place.” Similarly, an “exclusionary amenity” is a common resource that every resident pays for and has a legal right to use, but that also “polarizes people in predictable ways.” A buyer’s willingness to fund the amenity “functions as a proxy” for a desired characteristic. At Social Butterfly Place, a developer might build lavish common areas that extroverts would be happy to pay for but shy residents would consider an unwanted cost.

How do developers choose which exclusionary right to employ? Strahilevitz argues that “if the law treats all [exclusion strategies] as equal,” then information gaps between buyer and seller—a developer wants to sell to extroverts but doesn’t know if a prospective homeowner is outgoing—“will drive the decision.” Otherwise, bouncer’s right is the simplest and most effective choice; a developer could exclude sex offenders by simply reading a state registry and refusing to sell to anyone listed on it. But if a seller wanted to exclude introverts, he wouldn’t have such ready access to information. Instead he would rely on exclusionary vibes or amenities to get buyers to sort themselves in or out.

Where race is an issue, Strahilevitz says, all exclusionary strategies are not equal. Antidiscrimination laws forbid refusal to sell based on a buyer’s race, disclosure of information about a community’s racial composition, or advertisements to signal discriminatory preferences. So racially motivated use of bouncer’s right and, to some extent, exclusionary vibes isn’t legally permissible. Yet demand endures for racially exclusive housing—Strahilevitz cites a telephone survey led by Rice University sociologist Michael O. Emerson and published in the December 2001 American Sociological Review. Virtually all white respondents said they wouldn’t move to a 65-percent African American neighborhood, even if crime were low, school quality were high, and housing values were increasing.

So developers have turned to exclusionary amenities, which remain unregulated. The amenity of choice for the last two decades has been a residential golf course, Strahilevitz believes, because “golf participation functioned as a better proxy for race than income, wealth, or virtually any other characteristic.” That is, at least until recently, golfers were overwhelmingly white. And circumstantial evidence suggests, he adds, that white buyers will pay a premium for residential golf courses even when they do not play golf. Although Strahilevitz says using an exclusionary amenity can be neutral or even beneficial—he points to the example of a South Dakota community marketed to sign-language speakers—he argues for regulation when it has a racially segregating effect.

To test whether census data supports his conclusions, Strahilevitz plans an empirical study comparing the racial composition of residential golf communities with other types of gated residential communities, but not until the 2010 data is available. By then he also hopes to measure “the Tiger Woods effect,” believed to have enticed more blacks onto golf courses. Surveys from 1996 and 2003 show that the number of African Americans who identified themselves as “avid fans” of professional golf rose 380 percent. “It’s rare that preferences among racial groups change that dramatically, that quickly,” he says, “so the task for me is to figure out how that might have affected the housing market.”