Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing?

The U.S. Supreme Court could be on the verge of issuing a major setback to racial integration efforts. In two weeks, it will hear oral arguments regarding whether the federal government and states should be permitted to pursue policies that perpetuate or exacerbate racial segregation in housing—even where no intent to segregate is proven.

The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from families with less literacy come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.

The Economic Policy Institute, together with the Haas Institute for a Fair and Inclusive Society at the University of California, have organized a large group of housing scholars—historians and other social scientists—to sign a friend-of-the-court brief urging that housing policies perpetuating segregation should be banned.

The case was filed by the Inclusive Communities Project (ICP), a Dallas civil rights group that had been promoting racial integration in the Dallas area by assisting African American families who were eligible for rent subsidies (commonly known as “Section 8” vouchers) to find affordable apartments in predominantly white neighborhoods. This was difficult to accomplish because so many of the tax-subsidized low-income family housing developments that the Texas Department of Housing approved were located in heavily minority and low-income communities.

Those who defend practices like those of the Texas Department claim that they do not intentionally promote segregation but that developers pick minority and low-income communities for subsidized housing, not to purposely reinforce segregation, but because such communities are convenient for prospective tenants who live nearby.

Convenience should be no excuse, however, for perpetuating segregation. Our brief makes the following argument: historically, the federal, state and local governments have, in concert with each other and with private interests, acted to purposely segregate metropolitan areas by race. Once these patterns of segregation were established by deliberate racial policy, placement of federally subsidized housing (to be occupied predominantly by minority tenants) in already segregated neighborhoods unlawfully reinforces this segregation, even if Jim Crow policies are no longer in effect and no purposeful intent to segregate can be proven. It should be deemed unlawful for government agencies simply to respond to developer proposals without considering their racial impact, because the Fair Housing Act requires these agencies to affirmatively pursue integrated housing. As our brief recounts, a much earlier (1972) Supreme Court decision stated that the Fair Housing Act’s main purpose is to “replace ghettos ‘by truly integrated and balanced living patterns.’” This purpose would be improperly repudiated if the Court were now to permit practices like those of the Texas Department of Housing.

It is unlikely but possible that the Texas case will be settled before the Supreme Court issues its ruling. If so, developers will almost certainly seek another case in which the court will be invited to permit practices that perpetuate segregation, even where a deliberate intent to segregate cannot be proven. Possibly, we may again file a brief, tailored to the facts of a new case. If you are an historian or social scientist who would like to join any future such brief, please let us know at rrothstein@epi.org and steve.menendian@gmail.com.

For more detail regarding the Supreme Court case, and why it is so crucial to the future of race relations in the U.S., see here.


  • Richard Rothstein’s excellent brief on the case of the Texas Department of Housing and Community Affairs et al. v. the Inclusive Community Project spells out the details of how public policy and private housing practices have created the racial segregation that characterizes virtually all big cities in the US. The primary issue in this case is whether or not there is a disparate impact standard under the Federal Fair Housing Act. That is do plaintiffs have to demonstrate intent to discriminate or can violations of the law be found where the impact of a policy or practice perpetuates segregation or has an adverse disparate impact on racial or ethnic minorities or other protected classes under the act, and no legitimate business purpose is served.

    Rothstein writes that the Court “will soon hear oral arguments regarding whether the federal government and states can pursue policies that perpetuate or exacerbate racial segregation in housing but that cannot be proven to have been designed with a racially discriminatory purpose.” But the issue is not just whether the federal government and states can pursue such policies. Also at issue is whether private actors in the housing market (e.g. real estate agents, mortgage lenders, property insurers) can do so. The disparate impact standard, upheld by all 11 of the US Circuit Courts that have ruled on this issue and by HUD and the Department of Justice under Republican and Democratic Administrations, has been a vital civil rights tool. This has been particularly true in cases involving mortgage lending (during and preceding the recent foreclosure crisis) and home insurance.

    This is a critical case. Hopefully, the Supreme Court will uphold a longstanding tool that has enabled fair housing advocates to combat at least some of the most egregious forms of segregation and discrimination.

  • Susan Fennewald

    Housing advocates for the poor need to change their thinking. They
    are partially responsible for making the situation.

    There are times when “disparate impact” serves fairness and times when it doesn’t. By insisting that it is still a valid argument, even in circumstances where it doesn’t serve fairness, the housing
    advocates have diminished its worth and made it a target for attack.

    It’s my understanding that originally, disparate impact was used to show that, in situations where the same criteria were used to evaluate everyone, the result was unequal. There was disparate impact – even though evaluations were supposed to be identical. A black
    person and a white person with the same credit history were treated differently: the rate at which they were granted loans was different even though the granting of loans was supposed to be determined by their credit histories. It wasn’t fair.

    But then the meaning was enlarged and the demand for an equal evaluation was left out of the equation. It became a case of anytime a black and white person were treated differently, then there was disparate impact. The need for the “same credit history” was left out of the equation.

    This led to the situation in Minnesota that almost made it to the Supreme Court before. A city was trying to enforce its building codes. The claims were NOT that the city was unfairly targeting structures in black communities differently than structures in white communities WITH THE SAME CODE VIOLATIONS. The claim was that the city was being
    UNBIASED in its application of code enforcement – but that there were more code violations in black communities, so there was a disparate impact on the black community. This was an unfair use of disparate impact – that never should have been allowed to go under the name of disparate impact.

    Disparate impact went from advocates arguing that the same criteria applied equally should give the same result, to advocates arguing that the same criteria shouldn’t be applied equally to blacks and whites. (You shouldn’t hold blacks up to the same standards that you hold whites?)

    Advocates were no longer arguing that it was unfair that two structures(people) with the same code violations(credit history) were treated differently, as was the original meaning of disparate impact. Now it was a case where advocates were arguing that it was unfair for two structures with the same code violationsto be treated THE SAME.

    By not siding with the city authorities in Minnesota, HUD and the housing advocates may have fatally destroyed “disparate impact”.

  • DC

    Wish you folks would make your articles PDF -able…. this is important stuff you’re sharing… I need it in my computer memory/files.