Equity Demands Supreme Court Uphold Discriminatory “Impact” Prong of Fair Housing Act


Yesterday the U.S. Supreme Court spent an hour examining what grassroots leaders spent nine weeks studying in the United Workers recent Housing is a Human Right Leadership School in Baltimore:  whether we can do anything about the institutional racism that still exists in a profit-driven housing market.

The narrow legal issue discussed yesterday in the court’s oral argument in Texas Dept. of Housing v. The Inclusive Communities Project was whether Congress intended to prohibit facially neutral housing policies that have discriminatory impact, in addition to the intentional housing discrimination that was outlawed in 1968 Fair Housing Act.

As leaders in Baltimore learned last Fall, housing policy and practices in their City (and others) historically have been driven primarily by two principles: racism and profit. These combined with public policies and rising incomes in the 1950s and 60s to facilitate ‘white flight’ from Baltimore and establish white suburban rings around it during a time when housing discrimination was allowed.

Anti-discrimination efforts have always lagged behind the creativity of realtors, bankers and politicians. When the Supreme Court outlawed racially explicit zoning in 1917, private deed restrictions took their place, prohibiting white families from selling their homes to black households.  In 1932, the 37 largest lending banks in the U.S. prepared block-by-block maps at a mortgage conference in New York, and encouraged members to avoid making loans in areas with high concentrations of black families. The federal Home Owners’ Loan Corporation (HOLC), created the following year to stem Depression-based foreclosures and provide federal mortgage insurance to lenders, adopted the maps to guide their own lending guarantees. Black families moving to redlined areas of these maps were forced to obtain financing instead from realtors, who charged usurious interest rates.  HOLC’s successor, the Federal Housing Administration (FHA), further institutionalized this “redlining” by only insuring loans to housing with restrictive racial covenants. When those covenants were struck down the Supreme Court in 1948, the agency continued redlining, relying simply on economic and racial data. Real estate agents then capitalized on the court ruling, employing “block busting” techniques by quietly moving black households into white communities, then ringing a racist alarm to get the business of whites, all too eager to relocate and sell at a discount. Agents bought these houses and then sold them at inflated prices to black families.

In the 1950s, Federal highway funds helped city workers commute to suburban homes, and lay an infrastructure that lured retail and other businesses out of the urban center. Public Housing, introduced just prior to World War II and used to house war workers and returning veterans, also was segregated. As incomes increased in the post-war period, white famiies were able to catapult from this government-subsidized rental housing to government-subsidized homeownership in exploding suburbs. Residents in black public housing were left behind.

Finally, in 1968, the Fair Housing Act was passed to end all racial discrimination in housing. Yet, all that came before, combined with federal tax preferences that rewarded homeowners with high property values, gave white families a head start on black families in accumulating wealth. Higher property values in the suburbs funded better-resourced schools than those in the city, leading to higher skilled graduates with higher earnings potential, increased economic opportunities, and finally, the ability to again secure high value housing.

The Fair Housing Act certainly has reduced overt racial discrimination in housing, but its legacy is institutional racism.  A recent report mapping the education, neighborhood quality, social capital, public health and safety, employment and transportation opportunities within each census tract in Baltimore City and its surrounding counties is eerily similar to the redlined map of Baltimore in the 1950s–with the eastern and western parts of the City still marked as areas with lowest opportunity.

Much of the continued racial segregation we see today is due to facially neutral housing policies and practices that perpetuate and even exarcerbate the patterns of the past.  A good example is Baltimore County, the city’s neighbor to the north where most whites settled in the post World War II suburban explosion. The County is the most racially segregated jurisdiction in Maryland, and the 16th most segregated metro area in the country. It deliberately decided not to build public housing in order to preserve its “economic homogeneity.” It further created an Urban-Rural zoning demarcation, consigning all new multi-family development to older neighborhoods, such that 90% of the County’s population is now contained within one-third of the County’s land mass. Because a disproportionately high percentage of the County’s African-American residents are renters, the zoning effectively restricts rental development to older suburbs closer to the city. The County also has used the largest current source of affordable housing funding, the Low Income Housing Tax Credit, to build affordable housing primarily for the county’s elderly, who are predominantly white. As the County’s own analysis of impediments concluded, Department Housing and Urban Development (HUD) housing vouchers further fair housing “only to the extent that lower-income rental housing is available in a wide array of non-[racially segregated] areas, which is not the case in Baltimore County.” Older neighborhoods in the County near the Baltimore City line resemble Ferguson, Mo, in terms of racial and economic demographics, overseen also by white police officers and politicians.

Must a black person in a place like Baltimore County prove that the County is intentionally discriminating against her, or can she make her case by showing the impact is discriminatory? This is what was at issue yesterday in the Supreme Court.

Unlike yesterday’s limited Supreme Court hearing, the United Workers Right to Housing Leadership School gave community leaders weeks to examine housing policies using human rights principles. Universality, equity, and participation was used to critique almost 100 years of national and local housing policy and private practices, and participants came away with a new understanding of the larger forces that shaped their personal housing histories.

They also used these principles to envision a new housing policy not based on racism and profit, but on the values of community, inclusion, and equity. To date, leaders have been drawn to Community Land Trusts (CLTs), which employ different concepts of property ownership and emphasize the community nature of housing rather than its wealth accumulation potential. CLTs legally separate the land from the housing that sits upon it, and allow communities to own and control its long-term use. Community ownership boards are designed to bring racially and economically diverse groups together to help overcome historic divisions and work in concert with government to guarantee non-discriminatory housing. The Baltimore group has committed itself to a multi-year campaign to create and obtain significant public funding for such housing.

We have a shameful housing history in the United States, one that cannot be rectified by simply outlawing racism in the future. Given the role of housing in our culture, social, and economic structures, and the legacy racism has left in terms of disparate incomes, wealth, and opportunity, prohibiting any “neutral” housing policy or practice that operates to perpetuate this division and disparity is required by human rights. Equity demands it.