Columbia University May Use Eminent Domain to Take Over a Harlem Neighborhood:

As this New York Times Magazine article explains, Columbia University may be planning to use eminent domain to acquire property from unwilling owners in a Harlem neighborhood where the University would like to build new facilities (hat tip to Propertyprof Blog). Like most private organizations, Columbia lacks the power to condemn property on its own. But university leaders seem confident that they can persuade New York City officials to condemn the property for them, perhaps due to the University's extensive political influence and NYC Mayor Michael Bloomberg's strong support for the unrestricted use of eminent domain.

The key facts:

Columbia's plans are ambitious: across a large swath of Upper Manhattan, the university wants to create an academic enclave that will both nurture intellectual progress and revitalize an urban area . . .

But in the eyes of many local residents, [Columbia's] optimistic rendering obscures the fact that to fulfill its vision, the university will have to bulldoze almost everything that's already there. About 1,600 people are currently employed in this part of Manhattanville, and some 400 live there . . .

Columbia has already purchased more than half the property it would need. But some owners have refused to sell, and Columbia says that eminent domain remains an option if negotiations fail. It's a dicey option, however. Throughout the country, public opposition to eminent domain has mounted since last summer, when the Supreme Court ruled that private property can be seized by local governments for private development. Virtually every state has considered changing its eminent-domain laws; at least 13 different bills on the subject have been introduced in Congress. As Justice Clarence Thomas noted in his dissent in the recent Kelo case, concerning New London, Conn., an expansive definition of "public use" in the 50's and 60's permitted local governments to eliminate entire minority neighborhoods through eminent domain in the name of "urban renewal" — soon known as "Negro removal" among blacks.

As the NYT article suggests, this potential condemnation is part of a longstanding pattern under which politically powerful interests have used eminent domain to acquire property at the expense of the politically weak. Poor blacks have been victimized especially often, and this pattern may repeat itself here. To avoid misunderstanding, I should emphasize that I do not believe that Columbia is targeting this area out of racism. If the identity of the residents mattered to Columbia, key variable was probably the relative political weakness of the people in the neighborhood, not their skin color. Nonetheless, eminent domain abuse need not be racist to be reprehensible.

An ironic aspect of Columbia's plan is the role of the University's President Lee Bollinger (also noted in the article). He became famous as a defender of affirmative action during his tenure as President of the University of Michigan at the time the Gratz and Grutter affirmative action cases were before the Supreme Court. Bollinger is now a major supporter of the the Columbia expansion and seems more than willing to use eminent domain to get the property the university wants, despite the fact that poor African-Americans would be the major victims. There may not be a direct contradiction between Bollinger's stance in Grutter and Gratz and his position now. But his current position should certainly increase skepticism about Bollinger's claims to be a defender of "diversity" and minority rights.

A few relevant facts that the article omits:

1. Even if Columbia does not actually resort to eminent domain but merely continues to threaten it, this could cause serious harm to the property owners. The mere threat of eminent domain will usually depress property values in the area, and often force owners to sell "voluntarily" in order to avoid the costs of prolonged litigation. Moreover, owners who do not sell quickly may face even greater price declines in the future if the government moves to condemn some of their neighbors' land. This is one of the reasons why a bright line rule against "development" condemnations is necessary. Even if it is unclear whether courts will uphold a given condemnation or not, the mere possibility that they might can be used to drive down property values and compel "voluntary" sales. Such pernicious dynamics are particularly severe if the property owners are poor and/or legally unsophisticated and therefore unable to bear the burden of fighting city hall for their land.

2. The article seems to accept at face value Columbia's claims that they can't carry out their expansion plans without resorting to eminent domain because of the danger of "holdouts." In reality, private developers - including major universities such as Harvard - routinely assemble large tracts of property without resorting to eminent domain. To prevent holdouts, they purchase the land secretly and only announce the building project after they have purchased what they need; in this way, potential holdouts never get a chance to stop the project in order to extort abnormally high payments for themselves. For a more detailed explanation of this admittedly complex issue, see my article here, pp. 21-28. While "holdout" problems sometimes do justify the use of eminent domain, it is far more common for this issue to be used as a dubious pretext for coercing property owners who are not holding out for a higher price but are genuinely unwilling to sell. This seems to be the case here.

3. New York state has some of the worst public use jurisprudence in the country. New York courts have allowed the use of condemnation for "economic development" purposes for decades (long before Kelo), and they are willing to endorse even the most blatant transfers of land for the benefit of private interests. In a 2001 case, for example, a New York appellate court upheld the condemnation of property in Times Square in order to allow the NY Times to build a new headquarters. The ostensible justification was that the area was "blighted" and that the condemnation would help alleviate the alleged blight. See In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002). At least in the short term, Harlemites cannot expect courts to save them from Columbia's expansion plans.

On the other hand, major universities fear negative publicity to a far greater extent than most commercial developers do. Hopefully, there will be a big enough outcry to persuade President Bollinger and Columbia to reconsider their plans.

UPDATE: For those who may be interested, the NAACP's amicus brief supporting the property owners in Kelo contains a wealth of information on how eminent domain abuse has disproportionately victimized poor blacks over the last several decades - often even in the absence of racist motivation on the part of the state.