Celebrate the Fair Housing Act by retaining its power

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Today, we celebrate the 51st anniversary of the Fair Housing Act. The law was passed with strong bipartisan support in the wake of the assassination of Dr. Martin Luther King, Jr. The nation was in shock and people were in despair. President Johnson urged Congress to take immediate action: “When the nation so urgently needs the healing balm of unity, a brutal wound on our conscience forces upon us all this question: What more can I do to achieve brotherhood and equality among all Americans?” 

The ;answer was the Fair Housing Act. Although the law has been on the books for half a century, there is more work to do. The National Fair Housing Alliance tracks housing discrimination. We know that more than 4 million instances of housing discrimination occur each year, and the vast majority are unreported. We also know that our society is still plagued with the infrastructure of systemic inequality that drives many disparate outcomes.  It is one of the reasons why the African-American homeownership rate is stuck at roughly 41 percent – where it was 50 years ago when the Act was first passed. People of color that have the same or better financial profiles than their white counterparts are much more likely to pay more for auto loans, be steered into higher cost and inferior mortgages, and pay higher rental housing costs. Even algorithmic-based systems perpetuate discrimination. When Americans are denied equal access to housing opportunities, it reduces the availability of good jobs, quality education, safe streets and a clean and healthy environment.

{mosads}This is precisely the wrong time to pull back one of the most longstanding and effective tools for addressing systemic disparities in housing. Yet that is exactly what the Trump administration and, more specifically, the Department of Housing and Urban Development, are poised to do.

In their crosshairs is a protection called “disparate impact.” This protection says that landlords lenders, insurers and others in the housing industry should use policies that treat people fairly. The fact is that neutral sounding policies can have a discriminatory effect that unnecessarily harm certain communities. The law says that these types of policies must be changed so that they are both effective and fair.

Disparate impact is effective in challenging housing policies impacting the wide range of communities protected by the Fair Housing Act. Families with children have relied on this tool to contest overly restrictive occupancy standards set by apartment buildings. Homeowners have used disparate impact to successfully challenge policies that redlined communities of color. Mortgage applicants of color have benefitted from its use in preventing discriminatory lending criteria. This protection has helped victims of domestic violence to retain housing when nuisance ordinances threaten to evict them for making calls to law enforcement to report abuse.

The Fair Housing Act’s protection against adverse impacts on particular communities has enjoyed bipartisan support for over 45 years. It was the Nixon administration that first relied on this enforcement tool to challenge exclusionary zoning ordinances that negatively impacted communities of color. Since then, Republican and Democratic administrations have used it to address widespread discrimination in housing.  

Legal support for the disparate impact doctrine has been steadfast. Every circuit court to consider the availability of disparate impact under the Act has supported it. Several years ago, the Supreme Court affirmed its use and acknowledged its role in “moving the Nation toward a more integrated society,” in Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project

The Obama administration issued a regulation setting forth standards for using disparate impact that is now in the Trump administration’s sights. But the administration is not stopping there. There are plans underfoot to mount a large-scale attack on the disparate impact tool’s application in other civil rights areas, including education, employment, health, environmental justice, transportation and policing. Without this tool, we will be unable to effectively challenge the systemic inequality at the heart of our nation’s gender wage gap, disproportionate discipline of children of color in schools, over-policing of neighborhoods of color, and the nation’s racial wealth gap.   

As we celebrate the Fair Housing Act, we must re-commit to its goals and its tools. Everywhere we look, we find proof that strong enforcement is still vitally necessary. Hate crimes are on the rise, neighborhoods are re-segregating, and systemic discrimination still infects our social structures. Our work moving forward must include strong enforcement of the Fair Housing Act to bring about the equality and justice that Congress and President Johnson envisioned more than half a century ago in tribute to Dr. King. It is on us to keep that promise alive.

Rice is president and CEO of the National Fair Housing Alliance.

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