When a fair housing rule is not fair

Just a week after the assassination of Martin Luther King Jr. in April 1968, Congress passed the Fair Housing Act, which outlaws discrimination in housing. Sen. Edward Brooke (R-Mass.) and the first African American elected to the Senate since Reconstruction, wrote the bill with Sen. Walter Mondale (D-Minn.). On the Senate floor, Brooke invoked a spirit of bipartisanship that ultimately carried the day: “Fair housing is not a political issue, except as we make it one by the nature of our debate. It is purely and simply a matter of equal justice for all Americans.”

Citing extensive statistics on the persistence of racial segregation and concentrated poverty in American cities, Brooke also debunked the common myth that segregation was simply a byproduct of individual preferences and housing costs: “Careful analysis of 15 cities indicates that white upper- and middle-income households are far more segregated from Negro upper- and middle-income housing than some white lower-income households. Thus, racial discrimination appears to be the key factor underlying housing segregation patterns.”

Today, HUD proposed a rule under the Fair Housing Act that erases race and racial disparities from HUD’s definition of fair housing. The proposed rule doesn’t mention racial segregation or racially concentrated poverty – the twin evils the Fair Housing Act was designed to address. Instead, the rule attempts to codify the widely refuted myth that simply reducing housing costs will provide fair and equal access to housing, regardless of race or ethnicity, disability, family status, or any other characteristic protected under the Fair Housing Act.

HUD’s proposed rule fundamentally rewrites a provision in the Fair Housing Act that requires HUD to “affirmatively further fair housing”—essentially, to address segregation and discrimination. HUD and the courts have consistently interpreted the affirmative mandate as requiring all state and local governments to use their federal housing funds to promote “truly balanced and integrated living patterns” (a phrase used by Mondale in his speech on the Senate floor and quoted by the Supreme Court in its first opinion interpreting the Act). HUD’s proposed rule reinterprets this provision as only requiring local jurisdictions to increase housing affordability, primarily by lifting regulatory barriers to housing production.

Ample research demonstrates the stubborn persistence of segregation and the devastating consequences of growing up in a neighborhood of concentrated poverty today. A 2015 study by the Century Foundation finds that if you are black and poor in the U.S. you are three times more likely to live in a high-poverty neighborhood than if you are white and poor – a disparity that has only increased since the Great Recession. Echoing the statistics cited by Brooke more than 50 years ago, a recent working paper from economists at the Federal Reserve Bank of Cleveland shows that high-income, high-wealth black households live in similar-quality neighborhoods as low-income, low-wealth white households. The authors conclude that “neighborhood sorting by income and race cannot be explained by financial constraints.”

Moreover, the vast racial disparities in access to decent housing and healthy neighborhoods in the United States did not come about by chance, and they do not reflect market forces. Programs, policies, and practices have systematically denied equal opportunity to people of color, resulting in segregated neighborhoods with unequal access to resources.

HUD can – and must – tackle the dual challenges of fair and affordable housing in the U.S. Affordability challenges are crushing for very low-income families and creeping up the income scale to put the squeeze on middle-class households. But an equally pressing need – and one anticipated by Congress when it drafted the Fair Housing Act – is to end the plagues of discrimination, segregation and exclusion that divide our communities and shut too many families out of the American Dream. This issue should not be partisan; it is purely and simply a matter of equal justice.

Solomon Greene is a Senior Fellow at the Urban Institute and Vice Chair of the Board of Directors for the National Housing Law Project. Shamus Roller is the Executive Director of the National Housing Law Project.