By Andrew Cohen
Last month, the U.S. Supreme Court ruled that the Fair Housing Act bars not only policies aimed at perpetuating racial discrimination and segregation, but also “race neutral” policies that have the same effect. Amid the buzz over the Court validating same-sex marriage and upholding the Affordable Care Act, Berkeley Law’s Richard Rothstein called its housing decision “equally momentous.”
A senior fellow at the Chief Justice Earl Warren Institute on Law and Social Policy, Rothstein co-authored an amicus brief that the Court relied on in its decision. Justice Anthony Kennedy’s majority opinion cited the brief’s historical section in rejecting any housing policy that causes a “disparate impact” based on race, color, religion, national origin, gender, disability, or family status where reasonable alternative policies to achieve the non-discriminatory goal are available.
“Justice Kennedy’s opinion is a giant step forward,” said Rothstein, who is writing a book on the history of state-sponsored residential segregation. “Since the Fair Housing Act was enacted in 1968, public policies have maintained and often exacerbated segregation and concentrated poverty in many U.S. neighborhoods. By affirming the disparate impact standard, the Court has cleared a path for challenging the many exclusionary controls that sustain those patterns.”
The case, Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project, was brought by a civil rights group claiming that federal tax subsidies for low- and moderate-income housing in Dallas reinforced segregation. Countering arguments that the Fair Housing Act does not allow disparate impact claims, the brief revealed how Texas implemented its Low Income Housing Tax Credit (LIHTC) program—with alarming results.
Data showed that less than 5 percent of Dallas’s LIHTC housing units are in white-majority neighborhoods—less than 1 percent in neighborhoods that are more than 60 percent white. Overall, 156 of Dallas’s 162 LIHTC housing projects are in black-majority areas.
“A redevelopment project that displaces African Americans can violate the Fair Housing Act if no provision is made for relocating displaced residents into integrated middle-class communities nearby,” Rothstein said. “It’s just one example of how public policy in the mortgage and real estate markets have fueled segregation, and why merely banning intentional discrimination in housing is insufficient.”
Making their case
When the Supreme Court agreed to hear a disparate impact case in 2013, Stephen Menendian, assistant director of UC Berkeley’s Haas Institute for a Fair and Inclusive Society, contacted Rothstein to propose that they jointly craft an amicus brief. That case settled, but the Court then accepted Inclusive Communities Project last year. Rothstein and Menendian modified their brief to the new fact pattern, and got signatures from 62 top housing scholars, historians, social scientists, and demographers.
Some responses to the decision are more tepid than Rothstein’s. Eleven federal appeals courts already agreed on the illegality of race-neutral policies that result in discrimination, and many conditions are still required to prove “discriminatory effect.”
But Rothstein believes Kennedy’s opinion “may have breathed life into the Fair Housing Act” by stressing the importance of integrated housing. In addition, language in the statute requires every jurisdiction receiving Department of Housing and Urban Development (HUD) funds to “affirmatively further fair housing.”
“That clause now may have greater potential,” Rothstein said. “For this decision to make a practical difference in desegregating metropolitan areas, civil rights advocates and HUD have to prod municipalities not only to avoid taking actions that reinforce segregation, but to affirmatively further fair housing by taking actions to integrate.”
The Fair Housing Act followed 1967 riots over segregated and inadequate housing conditions for African Americans. The Kerner Commission, formed by President Lyndon Johnson, evaluated the riots’ causes and concluded that “segregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans … White society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”
The amicus brief described how federal public housing programs increasingly separated African Americans from whites, and how federal home finance programs underwrote the creation of all-white suburbs—with the explicit requirement that African Americans be excluded from them.
Kennedy’s opinion concluded: “The Fair Housing Act must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.’ The Court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”