The Limits of the Fair Housing Act

A new book shows the importance of the landmark law but also demonstrates that further class-based efforts are needed.

In the 2020 presidential campaign, a relatively obscure Fair Housing Act regulation briefly took center stage. In an extended series of tweets, Donald Trump announced that he was repealing the 2015 Obama-era Affirmatively Furthering Fair Housing (AFFH) Rule—which sought to promote residential desegregation—to protect “Suburban Housewives of America” from rising crime and plunging property values.

Furthering_Fair_Housing

Furthering Fair Housing
Prospects for Racial Justice in America’s Neighborhoods
Edited by Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale, and Maia S. Woluchem,
Temple University Press, 256 pp.

Playing on fears of low-income and Black people, Trump tweeted: “I am happy to inform all the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood …Your housing prices will go up based on the market, and crime will go down.”

The Obama AFFH rule grew out of a long-neglected aspect of the 1968 Fair Housing Act. When legislators passed the law, they recognized that it was not enough to simply outlaw racial discrimination in the sale and rental of housing. Given the federal government’s long history of creating segregated housing, and the entrenched nature of housing patterns, the law said that the Department of Housing and Urban Development (HUD) should take affirmative steps to dismantle segregation.

The first prong of the Fair Housing Act—to outlaw prospective discrimination—has had some important successes. Studies find that housing discrimination has declined, and the segregation between Black and white families has fallen by about 25 percent since 1970. But segregation levels remain high, and the second prong of the Fair Housing Act—to take affirmative steps—was never really enforced by neither Republican or Democratic presidents until Barack Obama, toward the end of term, required that localities outline barriers to integration and generate plans with measurable goals to reduce segregation or risk losing federal housing dollars.

Trump’s demagogic scare tactics in 2020 were unsuccessful. Joe Biden actually picked up suburban votes compared with Hillary Clinton in 2016. But housing desegregation has always been a dicey political issue for progressives; senators such as Paul Douglas of Illinois and governors such as Pat Brown of California have lost their seats over the years for championing fair housing.

Moving forward, President Biden has announced his intent to revive the AFFH rule, but his administration is faced with a question of what form it should take. Housing desegregation is the great unfinished business of the civil rights movement, and goes to the heart of providing opportunity in America, so crafting a smart approach is crucial.

Fortunately for Biden, a quartet of researchers with affiliations to MIT—Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale and Maia S. Woluchem—have assembled an eclectic group of scholars to make important suggestions for a new and improved approach to desegregating housing. Their new volume, Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods, provides a history of the Fair Housing Act and an insider’s account of battles within the Obama administration over the shaping of the AFFH rule. It also includes suggestions of how the rule could be improved. The volume, which includes contributions from both liberals and conservatives, offers a helpful primer for the new administration.

In one chapter, former Obama officials Raphael Bostic, Katherine O’Regan and Patrick Pontius note the contentious nature of the AFFH rule, not only between people of different ideological bents, but also within the progressive community. The rule-making process constituted what HUD officials dubbed “The Civil War Project” because it brought to the surface long-standing disputes between those progressives who push integration as the best path forward and those liberals who advocate investing more funds into creating educational and economic opportunities in high-poverty communities instead.

The AFFH Rule was crafted with the belief that while it is important to improve distressed neighborhoods, banking entirely on a “separate but equal” neighborhood strategy is unwise. Where you live in America determines access to good schools, safe neighborhoods, and job opportunities. As Harvard University’s Raj Chetty and colleagues have found, when children moved with their families to neighborhoods with less concentrated poverty before age 13 as part of a federal program, their mean income as adults was 31 percent higher than for the control group, which applied for the program but did not receive the opportunity. Likewise, research by the University of California at Los Angeles (UCLA) scholar Richard Sander and colleagues has found that the Black-white gaps in unemployment, earnings, and mortality are much smaller in metropolitan areas that have lower levels of racial segregation than those with higher levels.

While opponents of the AFFH rule, such as Trump’s HUD Secretary Ben Carson, derided the policy as “social engineering,” in fact the framers of the Fair Housing Act recognized that action was required precisely because residential segregation was engineered by the government in the first place. As Harvard’s Alexander von Hoffman notes in his chapter on the history of the Fair Housing Act, government redlining of neighborhoods and enforcement of racially restrictive covenants help explain why the typical Black household saw its chances of having a non-Black neighbor decline from one in two in 1880 to one in three in 1940.

Shrewdly, the Obama AFFH rule stressed that the goal was not racial integration for integration’s sake, which raises objections from the left that the aim implicitly endorses a “celebration of Whiteness.” Rather, the objective was that all racial groups should have access to communities with good jobs and high-performing schools. A new AFFH rule should go further and include measures of access to safe neighborhoods, suggests Michael Lens, a professor of Urban Planning and Public Policy at UCLA. Lens cites extensive data suggesting that access to low-crime neighborhoods is a primary motivator for low-income families who move and that escaping high-crime neighborhoods increases educational outcomes for students.

But if Biden wants to improve opportunity, he needs to do more than reinstate an improved AFFH rule to address the legacy of past racial discrimination. He should also confront the rising problem of income discrimination by government that disproportionately hurts people of color. While racial segregation is slowly declining, income segregation has doubled since 1970. The Fair Housing Act outlaws discrimination on the basis of “race, color, religion, sex, familial status, national origin, or disability”—but it remains perfectly legal for municipalities to discriminate based on income, per se, by banning the construction of more affordable types of housing, such as duplexes, triplexes and apartments.

Indeed, some supporters of the 1968 Fair Housing Act actually pushed this limitation of the bill as a feature rather than a bug. The late Senator Edward Brooke (R-MA), for example, noted the bill would only allow “those who have resources” to escape the ghetto. As a result, upper-middle-class Black families, like the one Senator Cory Booker (D-NJ) grew up in, were able to move to suburbs with strong public schools. But, Booker notes, many of his Black friends remained zoned out by class, rather than race.

For years, powerful Not in My Backyard (NIMBY) forces made reform of exclusionary zoning virtually impossible, but in recent years, coalitions of civil rights groups, labor unions, affordable housing advocates, and environmentalists have pushed back to legalize duplexes and triplexes in the entire city of Minneapolis and the state of Oregon, giving new hope that federal action too might be possible.

Indeed, Booker has teamed up with Congressman James Clyburn, a Democrat from South Carolina, to propose legislation to withhold federal funds from communities whose zoning laws discriminate by income, even if there is no disproportionate impact on minorities—a bill Biden has endorsed. And Biden’s infrastructure proposal includes a $5 billion race-to-the-top initiative to provide incentives for communities to reduce exclusionary zoning that discriminates by wealth.

Ultimately, America also needs an Economic Fair Housing Act, which would give individuals harmed by economically discriminatory policies the right to sue local governments in federal court, the way individuals can currently sue for racial discrimination. Such a law would mostly protect low-income people of color, but it would also benefit working-class whites, who are also excluded by government fiat from high-opportunity neighborhoods.

An Economic Fair Housing Act—coupled with a new and improved AFFH rule—would do a great deal to reduce racial, economic, and political divides that bedevil the country.

Furthering Fair Housing’s sound guidance should be read by all public officials seeking to navigate this difficult terrain.

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Richard D. Kahlenberg

Richard D. Kahlenberg is a senior fellow at the Century Foundation, and is writing a book about housing segregation.