Taking Back the Suburbs: The Fair Housing Act at Fifty

Published originally in Dissent magazine’s fall 2018 issue.
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Though many Americans still picture a “suburb” as an all-white enclave with big houses bordered by white picket fences, suburbs today look quite different from the 1950s stereotype. Most suburbs are racially diverse, and even increasingly impoverished. While 78 percent of suburban census tracts were predominantly white in 1980, over the next four decades, that figure dropped to 42 percent. By 2010, a majority of suburbanites lived in communities where at least every fifth resident was a person of color, making racial diversity a daily reality.

In other words, the city-suburb dichotomy that has defined American politics for decades is breaking down. Today, most places described as suburbs look, in the eyes of many Americans, distinctly “urban,” while the picket-fence variety is a shrinking minority. This is partly a factor of what urban historians have called the “great inversion”: as the white and affluent have returned to cities over the last two decades, along with unprecedented amounts of real-estate finance, working-class residents, largely of color, have been pushed further and further beyond city limits. It’s now impossible to engage lower-income Americans politically—or, for that matter, a majority of the nation’s people of color—without reaching far into suburbia.

Nevertheless, political battles, at least rhetorically, continue to be fought along familiar geographic lines. Somehow, America’s cities have changed and the political world has barely noticed.

But this state of affairs can’t go on forever. Either old living patterns will reassert themselves, or new political coalitions will be forged, taking advantage of modern political topography. The former would almost certainly benefit the right; the latter, the left.

Which way things go may end up depending on the survival and enforcement of the Fair Housing Act—the very law that so dramatically changed the American metropolitan landscape in the first place.

 

The Fair Housing Act emerged in a fraught political moment. In 1967, riots erupted in dozens of cities across the country, prompting President Lyndon Johnson to establish an eleven-member team to investigate the uprisings. The Kerner Commission (named for its chair, Governor Otto Kerner, Jr. of Illinois) released its findings in February of 1968, and pointed to racial segregation as the origin of the unrest. “Our nation is moving toward two societies, one black, one white—separate and unequal,” the report famously concluded.

That same month, Democratic Senator Walter Mondale and Republican Senator Edward Brooke—the lone black member of the Senate—introduced the Fair Housing Act, a law to address housing discrimination and segregation. The political opposition to fair housing legislation was severe: critics had long argued that making it easier for black families to move into all-white neighborhoods would weaken the property rights of homeowners and represent “reverse discrimination.” But as Martin Luther King, Jr. campaigned for “open housing” and dismantling the nation’s ghettos, political pressure continued to grow.

Congressional gridlock was broken by tragedy on April 4, 1968, when King was shot in Memphis. A whirlwind of events followed—intense anger and rioting, especially in Washington, D.C., increased pressure for Congress to respond, and the Fair Housing Act (technically, Title VIII of the Civil Rights Act of 1968) was signed into law by President Johnson within a week. While the Civil Rights Act of 1866—the first federal statute to affirm all citizens are equally protected under the law—offered individuals the right to challenge discriminatory practices in housing, that statute placed a disproportionate burden on victims to enforce their own rights, ultimately rendering those protections all but useless. It proved too onerous for most people of color to sue white landowners, and the law was used only a handful of times over its first hundred years.

By contrast, over the last five decades, hundreds of thousands of lawsuits and complaints have been filed under the Fair Housing Act, according to Wade Henderson, the former president of the Leadership Conference on Civil and Human Rights. Unlike its Reconstruction-era counterpart, the Fair Housing Act places the onus of enforcement on the federal government, authorizing the Department of Housing and Urban Development (HUD) and the Department of Justice to carry out the law. While an administration hostile to civil rights can always find ways to shirk its legal duties, enforcement is carried out by career staffers, not political appointees, and has continued apace since the law’s enactment fifty years ago.

The Fair Housing Act has two mandates: to combat discrimination in housing and to “affirmatively further” integration. For the law’s drafters, these two goals went hand in hand. “The law was informed by the history of segregation, in which individual discrimination was a manifestation of a wider societal rift,” Mondale wrote this year in the New York Times.

Since its passing, the law’s mandate has steadily grown more expansive. Today it covers seven classes of discrimination: race, color, religion, sex, national origin, disability, and families with children. In 1988 Congress also bolstered the law’s enforcement mechanisms and beefed up the penalties that come with violating it. While the Act has always been controversial, and remains contested today, public opinion has also shifted over time. According to the General Social Survey administered by the National Opinion Research Center at the University of Chicago, the proportion of white respondents favoring laws banning housing discrimination rose from 37 percent in 1972 to 69 percent in 2008.

And yet enforcement of the law’s second mandate—to integrate neighborhoods—has always been sporadic at best. During Barack Obama’s second term, his administration took several important steps toward fulfilling the Act’s original promise. But then Trump was elected.

 

The surprise ascendance of Donald J. Trump to the White House spooked housing and civil rights advocates across the nation. While working as a real-estate developer in the 1970s, Trump was sued in one of the largest cases ever brought by the federal government for housing discrimination against African Americans. (He dismissed the allegations as “absolutely ridiculous.”) Over the last year and a half, Trump’s housing secretary Ben Carson has launched attacks on federal programs to promote integration and low-income housing, while the president has moved aggressively to deregulate both the housing and financial sectors.

The Trump administration has launched three distinct attacks on fair housing.

The first came last summer, when HUD took aim at a rule for the Section 8 rental voucher program. Known as the Small Area Fair-Market Rent rule, it had been developed after years of advocacy, research, and public debate, and was set to take effect at the start of 2018. But in August of 2017, Carson’s HUD announced it would be delaying implementation for two years. (HUD claimed they weren’t abandoning the rule, just postponing it for the sake of further study.)

The Small Area Fair-Market Rent rule is a seemingly small change with potentially huge effects. It requires local public-housing authorities to calculate their rent subsidies at a neighborhood level, rather than a citywide one. In effect, this increases the spending power of Section 8 vouchers across all of a city’s neighborhoods, allowing recipients to move more easily to affluent ones. Vouchers have become the predominant form of rental subsidy in the United States, even though three-quarters of those who qualify receive no assistance. But those who do manage to obtain one have generally lacked the ability to move out of poor areas because their subsidy doesn’t go far enough. This in turn has allowed landlords in impoverished communities to price-gouge their voucher-holding tenants who lack bargaining power, by setting rents at the maximum level the feds will allow. The Small Area Fair-Market Rent policy was successfully piloted in Dallas and a 2014 study of that pilot found it imposed no-net cost on government spending.

Industry groups like the National Association of Home Builders and the National Apartment Association oppose the Small Area Fair-Market Rent rule, and helped pressure Ben Carson to rescind it. But in October 2017, a coalition of civil rights groups, including the NAACP Legal Defense and Educational Fund and the Lawyers’ Committee for Civil Rights Under Law, sued the Trump administration, taking HUD and its secretary to task for improperly pulling the rule. The civil rights groups accused the feds of violating the statute that dictates how federal agencies can propose and implement regulations. In early December HUD argued in court filings that it had broad powers to delay the rule, but a U.S. District Court judge rejected their arguments. The Trump administration lost, and the rule is now in effect.

The second attack came one month later, in January, when HUD announced that it would be suspending a different rule crafted to reduce housing segregation. This rule, finalized in 2015, is known as the Affirmatively Furthering Fair Housing rule, or AFFH. It was a long-awaited measure to define exactly what the Fair Housing Act meant when it required authorities to “affirmatively further” housing equality. While communities that receive federal housing dollars have for decades had to certify that they were working to reduce government-sponsored segregation, HUD did little to ensure that real action was being taken.

Federal authorities acknowledged this problem at least as early as 2008, when a national commission on fair housing concluded that HUD requires “no evidence that anything is actually being done as a condition of funding,” and that municipalities that actively discriminate or fail to promote integration go unpunished. This was echoed by a Government Accountability Office report in 2010, which found that communities were failing to comply with federal fair housing mandates and that HUD was failing to enforce those rules. The AFFH rule emerged out of deliberations held over the next five years, ultimately giving communities more tools to carry out their fair housing obligations, and strengthening HUD’s enforcement mechanisms for oversight. It was a major victory for civil rights groups—and faced a corresponding backlash from conservatives and some local governments. Stanley Kurtz of the National Review called it “easily one of President Obama’s most radical initiatives,” one that “gives the federal government a lever to re-engineer nearly every American neighborhood.” Right-wing news outlets and talking heads, from Rush Limbaugh to Breitbart, picked up Kurtz’s claims and railed against Obama’s “war on the suburbs.” It didn’t matter that the white-picket suburbs of their imaginations had been disappearing since long before Obama took office.

So supporters of AFFH were dismayed, if not surprised, when the Trump administration announced at the start of 2018 that it would be suspending the rule. Before Ben Carson joined HUD, he had joined in the chorus of conservative opposition, publishing an op-ed saying he considered the rule like other “failed socialist experiments of the 1980s”—a reference to busing school children for desegregation. He argued that the AFFH rule relied on a “tortured reading of the Fair Housing laws” and likened it to “mandated social-engineering schemes.” After he joined the federal government, Carson claimed that he “believe[s] in fair housing” but not in “extra manipulation and cost,” and so intended to “reinterpret” the AFFH rule. In the federal government, this idea has an ideological lineage that can be traced back to Richard Nixon, who caveated his opposition to legal segregation by saying he found the “forced integration of housing or education” to be “just as wrong.”

Four months after HUD announced it would be suspending the AFFH rule, a coalition of civil rights groups filed suit. The plaintiffs charged HUD with ending oversight and reducing support for AFFH implementation, effectively sabotaging its own rule’s success. HUD responded by quickly reinstating the rule, and instead withdrew a crucial assessment tool used for implementing AFFH. The plaintiffs amended their complaint to say this was effectively the same problem, and still illegal. But this time HUD’s legal maneuvering proved successful, with a federal judge ruling in August that HUD was in its rights to withdraw the assessment tool. Civil rights groups decried the decision, and HUD is now considering revamping the AFFH rule altogether.

Lastly, this past June, the Trump administration issued a notice in the Federal Register announcing that it plans to revisit its rule around “disparate impact” housing discrimination, meaning discrimination that happens regardless of whether a policy was designed with the intent to discriminate. This disparate impact rule was finalized in 2013, and places a ban on any “facially neutral practice that has a discriminatory effect.” The insurance industry, many banks, and some state housing agencies have long opposed this prohibition, and advocates worry that this notice signals HUD’s renewed intent to weaken it. “We all know it’s a shot across the bow,” says Sasha Samberg-Champion, a civil rights attorney who has been involved in both lawsuits against HUD in the Trump era. The administration points to a 2015 Supreme Court decision that upheld the disparate-impact standard as a justification to revisit their 2013 rule. While civil rights groups are rightly wary of HUD’s thin rationale for reopening the disparate-impact rule to public comment, for now they can only stand by to see what develops.

 

Despite the administration’s attacks, civil rights leaders remain cautiously optimistic about the future of fair housing. Spurred by a changing policy landscape and creative litigation, momentum is building to not only save but strengthen the 1968 Act.

For years scholars debated among themselves whether it was even worth trying to integrate American neighborhoods, given the scant social-science evidence to support it. But over the last few years a flurry of research has emerged that has helped shift the political conversation more clearly in the direction of promoting integrated communities.

In 2015, a team of Harvard economists released a study on the long-term impacts of Moving to Opportunity, or MTO. MTO was a housing experiment that ran from 1994 to 1998, and involved moving individuals voluntarily from high-poverty neighborhoods into ones with less than 10 percent poverty. The goal was to see if this would improve their life outcomes. While MTO had long been considered a failure, having not significantly improved children’s school performance or the financial circumstances of their parents, the Harvard researchers found that children who moved were more likely to attend college and earned significantly more as adults than children who never moved. A year later an economist at the University of Michigan published a study that found children who were involuntarily displaced in the 1990s because their public housing projects were demolished wound up living in safer and less impoverished neighborhoods, and consequently earned more as adults compared to children who never moved out of the projects. The researcher suggested the differences could be explained in part by the fact that the displaced children had fewer criminal arrests and were exposed to less violence growing up than their non-displaced peers.

Other new research has focused on the increase in neighborhoods with concentrations of poverty. One academic documented a steep increase in the number of high-poverty neighborhoods, with the number of people living in them almost doubling from 7.2 million in 2000 to 13.8 million by 2015. Another researcher found there’s been a 20 percent increase in neighborhood segregation by income across the country between 1990 and 2010.

While activists and policymakers have not abandoned their efforts to revitalize low-income, segregated neighborhoods, the growing body of evidence about the harms of concentrated poverty has bolstered the renewed momentum around integration.

Even as efforts to strengthen the Fair Housing Act’s primary mandate are pushing ahead, creative lawsuits are expanding the boundaries of what’s understood as fair housing.

Consider the environment. While the Fair Housing Act has traditionally been focused on discrimination by housing providers, some have started to ask whether government policy that negatively impacts the housing of protected classes should also be considered a violation of the Fair Housing Act. Jesus Hernandez, a lecturer at the University of California, Davis, points to the Flint water crisis as an example: in Flint, drinking water became poisoned precisely because the city’s leadership decided to switch from treated water supplied from Detroit to a local water source long known to be contaminated. Fifty-four percent of Flint’s residents are black, meaning the Flint water crisis disproportionately impacted the drinking water of African Americans. This also means it may be possible to show there was disparate discrimination against a protected class. More intentionally pursuing the links between housing, race, and environmental policies could open space for a new wave of civil rights activism.

Or take criminal justice. Many landlords impose blanket bans against tenants with criminal records, bans which impact not just individuals reentering society, but their family members too. In recent years lawyers have been studying how the Fair Housing Act could be used as a tool to challenge the housing discrimination faced by the hundreds of thousands of people released from prison annually, a population that’s disproportionately male, black, and Hispanic. An ongoing lawsuit filed in 2014 is putting this theory to the test in New York City.

Similarly, advocates have started to explore how the Fair Housing Act could be used to challenge so-called “chronic nuisance ordinances”—which have been found to lead to the eviction of families, especially in low-income, segregated neighborhoods. These laws penalize tenants and landlords if the police are called too many times to come to the premises. The first fair housing challenge to one of these ordinances came in March 2017 out in Missouri. “Maplewood’s chronic nuisance ordinance has the purpose and effect of making housing unavailable based on race, sex, and disability and it fails to further any legitimate purpose,” the complaint reads. “In particular, rather than making communities safer, it makes them less safe by discouraging crime victims and other residents from contacting the police or availing themselves of other emergency services such as ambulances.” The lawsuit is still making its way through federal court.

 

If the drafters of the Fair Housing Act made one mistake, Walter Mondale wrote this year in the Times, it was in their “excessive optimism about how easily a segregated society could be unified.” Today’s civil rights activists have long been disabused of any such illusions. But in their ongoing efforts to create a more integrated America, the Act remains a vital foundation.

Despite fifty years of extraordinary political challenges, it has proven instrumental in transforming American cities. It has turned many of the country’s suburbs from lily-white enclaves into multiracial communities where people of different races do live, work, and go to school together. Even where they persist, discriminatory practices that were once openly sanctioned by the federal government must now be carried out behind a veil of secrecy.

This is not to say, of course, that the law itself has never stumbled. Fair housing enforcement has often been weak, and interest groups that benefit from the status quo have consistently opposed attempts to implement the Act’s boldest components, like the “affirmatively furthering” rule and its mandate to integrate the suburbs. Altering American communities would threaten many who benefit from things remaining the way they are, including those hoarding wealth in the remaining white enclaves and even developers long accustomed to building affordable housing, conveyer-belt-style, in poor, segregated areas.

Still, the Fair Housing Act’s mandates have proven resilient against the Trump administration’s attacks, and efforts to deliver on the law’s promise continue to push forward. Despite new threats, there is good reason to believe that the Fair Housing Act could emerge from the current political turbulence even stronger.

Ultimately, that would transform much more than just housing—or even the neighborhoods, schools, and communities around it. Integrating U.S. cities and suburbs could reshape the wider political landscape—opening up new places to organize, creating new, multiracial polities amenable to progressive ideas, and building a United States in which progressive groups are not confined to dense, urban quarters and pitted against a mass of white suburbanites. In the America envisioned by the Fair Housing Act, the left can build power anywhere. Time will tell if its vision can be made reality.

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