by Larry Schwartztol
The Supreme Court recently heard a case that will define the future of decades-old legal protections against discrimination by landlords and banks against renters and homebuyers. The decision could have far-reaching consequences for the battle against housing policies that discriminate on the basis of race, sex, religion, disability, and other protected characteristics. And that, in turn, would have profound implications for efforts to ensure fair and unbiased policing in places like Ferguson and New York City and throughout the country.
Passed in 1968, the Fair Housing Act is one of the major legislative victories of the civil rights movement. It has helped rid our country of the most overt forms of housing discrimination, such as building single-race housing developments and using lending maps that demarcated black neighborhoods as mortgage-free zones.
But discrimination hasn’t gone away – instead, it has subtly morphed, preventing us from creating truly diverse communities.
The most harmful contemporary instances of discrimination can take several forms. Sometimes policies that are neutral on their face interact with entrenched segregation – typically the vestiges of prior intentional discrimination – to reinforce exclusionary policies. For example, zoning regulations that prevent the construction of mixed-income housing in overwhelmingly white areas often have the effect of excluding non-white families. In other instances, policies create conditions where individual landlords or mortgage brokers apply ingrained stereotypes or implicit biases to treat individuals differently based on race, even if that was not the intent of the underlying policies. And, of course, discriminatory policies are sometimes the product of outright racial bias that a perpetrator knows better than to broadcast explicitly so that the intention to discriminate remains disguised.
The FHA’s most effective provision for addressing these contemporary forms of discrimination is a legal rule that has held sway for 40 years – the idea that unlawful discrimination is not limited to cases where a plaintiff can prove that a defendant acted with conscious intent to discriminate. Instead, the FHA recognizes the idea of “disparate impact.” Under the disparate impact approach, a practice constitutes discrimination if it disproportionately harms a protected class – like racial minorities – and the defendant – typically a landlord or bank or municipality – didn’t need to use that practice, or could have done something different that would have avoided the discriminatory effect.
The disparate impact approach has been indispensable in rooting out housing discrimination precisely because it identifies and confronts discrimination that results from hidden, unconscious biases and practices that perpetuate the effects of past, intentional discrimination. But in the case currently before the Supreme Court, Inclusive Community Partners v. Texas Department of Housing and Community Affairs, the state of Texas has asked the justices to rule that disparate impact claims are not available under the FHA. The case involves a challenge to Dallas’ system for allocating low-income-housing vouchers in a way that reinforced patterns of residential segregation.
As many advocates and observers have argued in anticipation of this case, the disparate impact standard is crucially important to guaranteeing fair housing opportunities and diverse communities (for examples, see here, here, here, here, and here). One of the reasons that objective is so important is that there is often a profound connection between discrimination in housing and discrimination in other areas of American life. It’s well-established that where you live determines in large measure what opportunities you’ll have and how you’ll be treated.
Policing is a prime example.
Recent activism across the country, propelled by widespread outrage over repeated instances of police killing unarmed black men, has aimed at reforming racially biased policing. Events in Ferguson actually underscore how housing segregation can lead to racialized policing, in all its tragic dimensions. The racial landscape of the St. Louis region didn’t occur naturally. Rather it was the product of decades of efforts to impose residential segregation, enforced through a brutal cocktail of federal, state, and local policy as well as private acts of discrimination.
Indeed, a recent report by the Economic Policy Institute provides a nuanced history of those programs of discrimination. In depressing detail, it describes the many layers of governmental and private actions that erected often impenetrable boundaries separating communities based on race. The tragic killing of Michael Brown has helped to expose racialized policing in predominantly black areas, including data showing that police in Ferguson were twice as likely to search blacks as whites after initiating a stop, even though whites were far more likely to be found with contraband.
The connection between racialized space and racialized policing shouldn’t be surprising. Intensive residential segregation very often leads to concentrated poverty, a lack of municipal services, and failing schools – all of which contribute to an increase in certain crimes while also breeding stereotypes about disorder and criminality. These dynamics contribute significantly to the biased policing in predominately black or Latino neighborhoods. At the same time, the existence of identifiably black and white spaces leads to unfair targeting of minority individuals who happen to be in predominately white neighborhoods, especially the nonwhite residents of neighborhoods.
None of this is unique to St. Louis. For example, a recent ACLU study on Boston’s stop-and-frisk policies found that “a neighborhood’s concentration of Black residents drives the rate of police-civilian encounters.” In other words, even after statistically controlling for crime-related factors – including neighborhood crime rates – preliminary expert analysis of the Boston Police Department’s own data found that the racial composition of a neighborhood predicts how many police encounters will take place there. A statistical analysis submitted to the court as part of the challenge to New York City’s stop-and-frisk program found similar patterns.
And that brings us back to the future of the Fair Housing Act. The FHA has for decades provided the most powerful legal tools available for dismantling residential segregation. It has done tremendously important work, but that work is not done. When it comes to addressing housing discrimination in its current forms, the disparate impact standard is an absolutely indispensable tool. It smokes out covert intentional discrimination. More profoundly, it allows courts to carefully scrutinize policies that perpetuate patterns of segregation to determine whether they can be justified.
Removing this pillar of civil rights law would set back equal housing opportunity in dramatic ways. It would also set back the movement to reform bias-based policing at exactly the wrong moment.
Larry Schwartztol is with the ACLU Racial Justice Program
Larry wrote:
> discrimination hasn’t gone away
True and just weeks ago a recent college grad I know was told that he can not rent an apartment in the new West Village area because he is not a a current “student”.
> For example, zoning regulations that prevent the construction
> of mixed-income housing in overwhelmingly white areas often
> have the effect of excluding non-white families.
It is a stretch to say that “zoning regulations” are excluding “non-white families”. Less that half the population of California is (Non-Hispanic) White and it is hard to find ANY “white” neighborhoods in CA. Even in the dumpy hillbilly/redneck part of Pollack Pines where a cousin lives there are non-white families. I don’t know if Larry has spent much time in rural California, but he might be surprised to find out that Hispanics live even in areas without Section 8 apartments.
Everyone needs to read up on the topic of “underclass“: http://en.wikipedia.org/wiki/Underclass
There is some debate about the definition except for the economic characteristic…
But more importantly, there is debate about the causes and remedies.
One camp is all about government top-down efforts to desegregate through housing policy. In their 1993 book American Apartheid, sociologists Douglas Massey and Nancy Denton argue that racial residential segregation is primarily an outcome of institutionalized racism in real estate and banking, coupled with, and significantly motivated by, individual-level prejudice and discrimination.
These arguments are why we got the Carter era Community Reinvestment Act with bank regulators strong-arming banks to lend to more minorities (that led to banks developing new sub-prime mortgage products) and why we got Section-8 housing vouchers from HUD to replace the old policies of building low income tenement hosing developments that led to concentrations of underclass. CRA and Section-8 housing has improved the integration of races in many neighborhoods, but those stuck on these type of top-down “housing is the problem” remedies seem to ignore the changes and only double-down on their complaints that racial discrimination is rampant and the cause for continued concentration of blacks and Hispanics in low-income, high-crime neighborhoods.
Doing the same things over and over expecting a different result is a characteristic of insanity.
Lawrence Mead, an author and professor of politics and public policy at New York University, argues that the core cause of the underclass problem is a too permissive welfare system that provides benefits without requirements for behavior… and this encourage social dysfunctions, including welfare dependency, illegitimate births, joblessness, and crime. There have been some attempts to address Mead’s prescriptions in the Welfare Reform Act from the Clinton area. There is evidence that improvements derived from those changes… but again, this evidence is dismissed by those more vocal and active in pushing the solution to housing policy.
A more recent, and very interesting, IMO, prescription comes from Ken Auletta in his book, “The Underclass“, where he explains three typologies of solutions: “the wholesale option,” “the laissez-faire option,” and “the retail option.”
It is this last prescription that I think makes the most sense.
If we are honest we would admit that schools will decline and crime will increase when the population of underclass increase… and that more affluent people (upper-class) will not want to live where the schools are not as good and there is more crime. And so pushing underclass people to existing neighborhoods with housing policy will just end up causing more of this natural economic-social segregation. We will also admit that housing is largely dictated by market-forces and personal income. As more affluent are attracted to certain places, they inflate the value of real estate… making it less likely that lower income people can afford to live there. And even the demand for affordable housing is made difficult to impossible to satisfy because of the high land prices. And so lower-income people go where rents are cheaper.
But if we change our policies to differentiate those lower income families that are deserving of aid (not prone to the bad behavior that damages schools and increases crime), we would have greater success retaining the more affluent and we would do better helping to desegregate.
Now – what this leads to is even a greater concentration of the poorly-behaving underclass. But that is a different problem that demands different solutions. And that is my point here. The frustration of the race-obsessed social justice crusader is derived from their failure to separate that bad behavior from what is true basic racial disparity. We simply will not succeed trying to force well-behaving communities to accept more bad-behaving residents to help fix the racial underclass problem. First, it does not work. Second, affluence gives a family freedom and power to chose what is best… and “best” will be to move where the kids have a better school and there is less crime.
Frankly wrote:
> The frustration of the race-obsessed social justice crusader is
> derived from their failure to separate that bad behavior from
> what is true basic racial disparity.
There is nothing stopping “people of color” from moving to (historically) “white” neighborhoods and a SF Peninsula realtor was telling me that over half of her recent million dollar sales have been to people of color (it is hard to believe that many realtors are so racist that they would risk losing a $60K commission to keep an area “white”).
I don’t have the exact numbers from the 1950’s but I know that white males made up a LOT more than 15% of the students at Cal and UC Davis. With both schools under 15% white males today (a cousin at Cal told me that less than 5% of the people in his entire freshman dorm are white guys) I’m sure we won’t have to wait long for all these smart hard working kids to get good jobs and make the neighborhoods around good schools more diverse…
Good points SOD.
I see the problem as having two dimensions: bad behavior and racial outcomes. I think if we separate out the population with bad behavior problems, we would see that our racial outcomes are in fact significantly equalized.
So let’s focus on the bad behavior problem instead of using it to make a case for rampant racism.
I do agree that law-abiding blacks and Hispanics are sometimes treated unfairly, but I believe this is mostly due to human risk avoidance (both qualitative and quantitative) and also some negative racial branding (which the media plays a part it)… this is obviously not a good thing, but should be intellectually understood and rationalized.
If we eliminate more of the bad behavior, or at least isolate it, then we start to solve the problems of unfair treatment… or at least truly identify what is racism and what is not.
So instead of housing policy, which does not do near enough to help solve the problems and causes other problems, what do we need to do to help reduce the bad behavior so common with the underclass?
I have my ideas.
Your evidence for this? The article provides evidence that the outcomes are not equalized with respect to policing behavior:
In 2012, 123 blacks were killed by police with a gun
In 2012, 326 whites were killed with a gun
In 2013, blacks committed 5,375 murders
In 2013, whites committed 4,396 murders
Whites are 63% of the population blacks are 13%
I think you will appreciate this article http://www.motherjones.com/politics/2014/11/science-of-racism-prejudice and probably you and Tia will draw conclusions opposite of mine. Mine would be for the following two acknowledgements to occur:
1. That a human brain is already wired for risk assessment and reaction to maximize safety and minimize harm, and there is statistical evidence aplenty to support a justification for some amount of disparity in the difference between black and white treatment by the cops because there is an actual higher risk of harm when confronting a black suspect versus a white suspect.
2. That is next to completely futile to take the topic of racism down to this subconscious cerebral level. Because even if it is true – and I have great doubts that it is… at least to any degree greater different than any other human subconscious bias or stereotyping – there is no remedy to it worth pursuing. It will be a giant effort in futility.
Race-obsessed social justice crusaders are just looking for an ultimate affirmative action program that says “if you are not black you are automatically racist against blacks and therefore you have to pay ongoing restitution to blacks in the form of easier qualifications and more lenient policing and sentencing.” And don’t tell me that this isn’t the aim or the consequence of this dogged pursuit, because it can only be that.
You cannot just browbeat people calling them racist and have the population develop new powers over their subconscious to start altering their behavior. Even the most educated and sophisticated social justice champions cannot turn off their subconscious biases. Just ask them what they REALLY think of white southern Baptists.
And you also cannot force people to ignore their natural risk aversion and pursuit of safety.
What you can do is to start eliminating the bad behavior and negative branding. Do that and you will then identify all the actionable racism that needs to be stamped out.
The point of this article, and the lawsuit, is that if you integrate housing you reduce the tendency to concentrate crime and thereby reduce the tendency for disparate policing tactics. There is no browbeating, no discussion of restitution or any of that stuff. A key question is whether discrimination in outcome can require a remedy in the absence of demonstrated intent. If there is a long history of housing policies that leads to a concentration of poverty and isolation by race, and a pattern of more aggressive policing, higher levels of crimes being charged and more people being jailed for minor offenses, then it seems that the problem is less passive or quasi-biological than you are saying.
It doesn’t really matter how peoples’ brains are “wired” or what “cerebral level” we are talking about. It’s about outcomes. It’s about the realities of housing patterns and policing behaviors. And if housing policies perpetuate those outcomes, do the people who live there — or who seek to live elsewhere but are unable to do so due to income or low-cost-housing policies — get consideration and remedies?
Don reminded us that the story said: “Ferguson were twice as likely to search blacks as whites after initiating a stop”
I am not aware of the laws in Missouri, but in California the cops automatically search the cars of people (of all races) on probation or parole that they pull over.
The Washington Post recently wrote:
“The figures for Missouri are close to the averages for the country as a whole, according to Uggen and his colleagues. About 8 percent of the U.S. population of all races are felons. For black men specifically, the national average is above 33 percent.”
If the percentage of white felons on probation the cops pull over is ~5% and the percentage of black felons on probation they pull over is ~30% you would expect blacks in Ferguson to be searched SIX TIMES as often not just TWICE as often so it looks like the cops in Ferguson are actually holding back and NOT searching nearly as many blacks as you would expect.
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/20/how-decades-of-criminal-records-hold-back-towns-like-ferguson/
Don,
Most searches are made either for officer safety looking for weapons or incident to arrest. If blacks commit a disproportionate number of violent crimes (murder) leading to police contacts and searches, would it not be reasonable to expect to have more blacks searched than whites? Your Ferguson statistic only has meaning if you look at the reason for the stop and the reason for the search. You would then have to compare similar types of contacts and the number of searches. For example is a felony stop for auto theft more likely to result in a search than one for speeding or running a stop sign? You would also have to look at the crime patterns and calls for service by ethnicity to give that statistic further relevance.
Frankly
“this is obviously not a good thing, but should be intellectually understood and rationalized.”
Agreed with the exception of the last word. I would replace it with “discouraged” or “changed”. I see no need to simply throw up our hands and pretend that we are not responsible for attempting to improve our regrettable tendencies and replace them with better behaviors.
So let’s fix the poverty problem. It is not so much a race problem as it is a poverty problem. So how do we fix the poverty problem? Economic policy? Education policy? Where are the social justice crusaders on these remedies?
The focus of this article is on housing policies that lead to de facto segregation and harsher police treatment.
Poverty affects people of color more than whites. It’s certainly easier to change housing policies than it is to “fix the poverty problem.”
Don wrote:
> It’s certainly easier to change housing policies than it
> is to “fix the poverty problem.”
I’m wondering if Don thinks that a change the zoning to allow apartments in the hills above Pollock Pines will result in a lot of blacks moving up there?
How about if we change the zoning to allow 4,000sf “green” homes on 20,000 lots in Oak Park, would that result in a flood of whites leaving College Park in Davis to move there?
I’m interested in hearing what change to “housing policies” that Don thinks will reduce “harsher police treatment” (maybe a policy restricting outdoor yelling or a law banning lawn so cops won’t hassle homeowners of color mowing them)…
Actually the article was rather specific. Stop zoning lower-income housing out of higher-income areas. Or, as the author put it:
I’m not familiar with Pollock Pines at all. If you build lower-cost housing anywhere, including apartments, then people with lower incomes might move into that housing. Just a thought. Maybe a question SOD could answer is why he thinks Oak Park has more poverty and more people of color than nearby neighborhoods.
It seems that Don didn’t want to or can’t answer my questions, but I’m happy to answer his:
“Maybe a question SOD could answer is why he thinks Oak Park has more poverty and more people of color than nearby neighborhoods.”
This is a two part question since there are different reasons for the high number of people living in poverty and the high number of black people.
Once an area has a high crime rate (like Oak Park in Sacramento or the Tenderloin in SF) most of the people that end up there will be poor people that can’t afford to live anywhere else.
Once an area has a lot of one race people of different races don’t feel as comfortable moving to the area and is why we don’t have a lot of Chinese looking for apartments in Oak Park or Black people looking for apartments in SF’s Chinatown.
Here’s the history of how Oak Park came to be predominantly poor and minority: http://salt.unc.edu/T-RACES/docs/jesus_hernandez_sacramento_merge.pdf
Fast-forward to pages 12 – 13 if you want the details. The 3 R’s: redlining, race covenants, and redevelopment. Private discrimination coupled with public housing policies.
There is no doubt that these things have occurred, but to make the case that they are occurring today at a level that contributes to the racial segregation we see today is frankly ludicrous.
Please repeat that.. THE ISSUE ISN’T RACE, IT’S CLASS.
And let’s be honest here… much of the remaining discrimination that goes on is simply that… class discrimination.
And if you are a landlord renting residential properties that target lower-income people you will absolutely know what I am talking about.
I have a small second home in a small mountain community where about 20% of the homes are Section 8. It is all mixed up… with more expensive homes right next to pretty crappy properties. There is an old single-wide trailer behind our place across the alley that is Section 8. There have been 5 different tenants in the 10 years we have owned our place. Each one of them stores crap all over the yard around the trailer and ends up in trouble with the county. And they let their dogs (Pit Bulls of course) run around the neighborhood and get in trouble with the county. Most of them are nice enough people, they are just prone to low-class decision-making. Their lifestyle collides with those of the other neighbors like us living a higher-class lifestyle (note that by “higher-class” I don’t mean snooty). I don’t have any problem with income levels. I treat each person the same. But I do have a problem with bad behavior. And the underclass don’t know how to behave and negatively impact others in the community.
And I know this is part of the argument for integrated neighborhoods and integrated schools… that allowing the underclass to be exposed to the more affluent it will rub off and help raise them up. However, I don’t see that happen. I see the opposite. Once a neighborhood gets saturated enough with underclass residents, the more affluent people pack-up and leave. And then it is just a low-rent / high-crime neighborhood again with a high population of underclass and the arguments start again.
Interesting enough… once it gets bad enough the underclass actually destroy their neighborhood and have to move away. And then over time there can be redevelopment and gentrification. There are neighborhoods in Detroit where that is happening. And these reborn neighborhoods are coming back more mixed-race… but strongly middle and upper-class. And believe it or not the race-baiters are at it claiming that poor blacks and other victims groups are being priced out of these redeveloped areas and demanding more affordable housing.
It is really quite comical if you think about it. Like the Palestinians demanding access to Israel so they can overrun it and make it just like the rest of crappy Palestinian life.
The solution is to fix the problem where the problems are… not to relocate people having the problems… because they will just bring the same behavior responsible for their problems to the new location. But there are certainly some people in low-economic circumstances that are worthy of an assist to get out of hellish violent urban neighborhoods. These would be those that don’t have arrest records and are demonstrating they want to work their way up to a better life.
Yes I agree, manners are for everyone! I have a classmate in Cleveland, who keeps getting neighbors who tear stuff up, leave their garbage all over, cars in the yard, and the police are there a lot. No one wants that in their neighborhood. The Race? Don’t know, don’t care. And I don’t think you do either.
I agree, it is not poverty, race, but people seems to think money or the government can “fix it”. You can’t legislate morality, or it seems, manners. Culture and Diversity, indeed.