clock menu more-arrow no yes mobile

Filed under:

Could a 54-year-old civil rights law be revived?

Decades after Martin Luther King Jr.’s fight, American cities still segregate communities by race and class.

The Stone of Hope, a granite statue of civil rights leader Martin Luther King Jr., stands at his memorial in Washington, DC, on January 14, 2022.
Mandel Ngan/Getty Images

Rev. Martin Luther King Jr.’s assassination on April 4, 1968, helped usher in the passage of the Fair Housing Act (FHA), a law that promised to not only stop unjust discrimination but also reverse decades of government-created segregation.

The FHA, which made discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability illegal in the process of buying and selling homes, had already failed to pass Congress in two earlier versions. As Michelle Adams wrote for the New Yorker, the 1968 version would likely have met the same end if not for the political impact of the assassination.

But just a few months after the act’s passage, Richard Nixon was elected, and, as Nikole Hannah-Jones explained, the federal government’s “betrayal” of the FHA’s promise began. Nixon’s Department of Housing and Urban Development Secretary George Romney did attempt to use the FHA to meet its goal and actually desegregate white communities, telling “HUD officials to reject applications for water, sewer, and highway projects from cities and states where local policies fostered segregated housing.” But Nixon put a quick stop to this policy. And as Hannah-Jones documents, he wasn’t the last; since then, “a succession of presidents — Democrat and Republican alike — followed Nixon’s lead.”

In the 21st century, segregated communities are kept that way not through laws that explicitly attempt to keep certain areas white but through a more insidious method — exclusionary zoning and land-use regulations that make it illegal to build affordable types of housing, laws that allow wealthy Americans to block things from being built, and a failure to consistently use federal civil rights laws to desegregate.

All of this has resulted in the prices of housing and rent skyrocketing. Over the last year, diminished supply as a result of these laws has pushed the cost of shelter higher than ever, straining the pockets of working-class, middle-class, and even some high-income Americans.

To attack these regulations with the FHA, plaintiffs would have to prove that these laws have a “disparate impact” on a protected group — for instance, proving that a community blocking 300 units of moderately priced housing was discriminating on race, national origin, or family status.

But Richard Kahlenberg, a senior fellow at the Century Foundation and a leading thinker on economic integration, has an idea: Amend the Fair Housing Act to include economic discrimination as a legally prohibited form of discrimination.

No longer would litigators have to jump through hoops to prove that banning new affordable housing construction hurts people of color disproportionately. Instead, plaintiffs would just have to show that towns that blocked these developments were discriminating against poor people — regardless of their race, national origin, or family status.

“It’s immoral for governments to erect barriers that exclude and discriminate based on income and, as a matter of basic human dignity, economic discrimination belongs in the Fair Housing Act,” Kahlenberg explained.

While Democrats have often talked eloquently about the importance of fair housing, they have never seriously attempted to take on exclusionary zoning at the federal level. Left in limbo is George Romney’s idea that the federal government should withhold funds from localities still actively engaged in exclusionary zoning practices and thereby undermining the economic wellbeing of the entire country. Even now, as billions of infrastructure dollars are heading to states and local governments, it’s barely up for discussion.

(Perhaps it has something to do with the fact that economically segregationist communities are often ones led by Democrats — in wealthy cities and suburbs, economic discrimination is a normal facet of life.)

Enacting an Economic Fair Housing Act wouldn’t be as sweeping as Romney’s idea from the 1970s, and any new protections would still need to be enforced. Kahlenberg has been advising Rep. Emanuel Cleaver (D-MO) as the latter has begun drafting a bill to amend the FHA to include economic discrimination in the housing market.

“I think one of the greatest tributes that we can make to Dr. King’s legacy is for us, this year, to pass an Economic Fair Housing Act,” Cleaver told me over the phone.

I spoke with Kahlenberg about the potential for an Economic Fair Housing Act and whether this would really push the ball on increasing affordable housing. Our conversation has been edited for length and clarity.

Jerusalem Demsas

You’ve written a lot about exclusionary zoning built explicitly on the attempt to segregate based on race. Has that all morphed into economic discrimination?

Richard Kahlenberg

In certain communities, there is still an intent to segregate by race, so I don’t want to downplay that, but having said that, there’s certainly evidence that the issue of exclusionary zoning is not only about race.

We know in predominantly white communities that wealthy whites will use zoning to exclude lower-income whites. We also know, for example, in Prince George’s County, Maryland, a predominantly Black community, that there are efforts by wealthier Black people to exclude lower-income Black people through exclusionary zoning.

In some white, liberal communities, you will hear people say they are delighted to have a Black doctor or lawyer move in next door. And so they feel virtuous for no longer excluding directly based on race, without acknowledging that they’d be highly uncomfortable with working-class Black people or white people moving into the neighborhood.

So I think it’s important that we recognize that there’s exclusion going on by both race and class, which is why we need some new tools to beef up the existing laws.

Jerusalem Demsas

I think one of the most interesting parts of when you look at Supreme Court history in this space is the entrenching of the idea that apartments and multi-family housing are inherently a nuisance. In Euclid v. Ambler (1926) the Court wrote:

“depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities — until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses … come very near to being nuisances.”

And in the American context, thinking of multi-family housing as inherently a nuisance is pretty normalized. Can you talk a little bit about how this idea has played an important role in perpetuating economic segregation?

Richard Kahlenberg

The Euclid decision that you mentioned is fascinating because while the Supreme Court ultimately upheld economically discriminatory zoning, citing this idea that apartments are a nuisance, the lower court recognized that this is clear class discrimination.

And that is what’s going on — the notion that an apartment is a nuisance is a class-laden concept connected to the idea that there is a negative effect on wealthier people when lower-income people are in proximity.

Jerusalem Demsas

So what is your solution here? You’re proposing an Economic Fair Housing Act, what is that?

Richard Kahlenberg

So the idea of the Economic Fair Housing Act would extend the 1968 Fair Housing Act protection against racial discrimination to include protection against income discrimination by the government.

When local governments adopt “snob zoning” laws, they’re effectively saying we don’t want lower-income people in our community, and that’s a form of economic discrimination. The Economic Fair Housing Act would allow plaintiffs who are harmed by government-sponsored income discrimination to sue in federal court the way one currently can under the Fair Housing Act for racial discrimination.

The new law would draw upon the concept of “disparate impact,” which is used in the Fair Housing Act. So a plaintiff wouldn’t have to show that the government’s intent is to discriminate based on income, but only that exclusionary zoning has the effect of discriminating based on income. As with racial disparate impact suits, the burden would shift to the local government to prove that its policy is necessary to achieve a valid interest.

Jerusalem Demsas

There are a lot of judges who might say that there is a valid interest in upholding exclusionary zoning, building on the established idea that apartments — and by extension working-class and middle-class people — are nuisances.

Richard Kahlenberg

I think many judges will see through the pretexts offered by local governments. If, say, governments indicate they want to minimize traffic and parking congestion, a reasonable court is likely to press them: Is it really “necessary” to ban all duplexes and triplexes?

But to guard against conservative judges watering down the standard, it would be possible to include some process-oriented and results-oriented guardrails in the legislation. In this report, I suggested a ban on duplexes and triplexes could make a zoning policy presumptively illegitimate as a matter of process, and zoning policies in a community that had a very small share of affordable housing might be presumptively illegitimate as a matter of outcomes.

Jerusalem Demsas

My understanding with the Fair Housing Act is that the difficulty of enforcement happens in a couple of places.

One is that the “disparate impact” standard is actually quite difficult to reach, and there are many judges that are hostile to that analysis. And secondly that it requires just a ton of resources to suss out the disparate impact.

You often have to determine the counterfactual of what would have happened if a different legal system existed or what type of people would have lived in a development if it had not been blocked. It sometimes requires a mix of statisticians, economists, and sociologists in addition to lawyers to do that analysis.

So, how does adding economic discrimination help solve that core issue?

Richard Kahlenberg

I think it would make a big dent. The criticisms you cite of the Fair Housing Act are legitimate. Having said that, when the law was passed in 1968, I think it had two big impacts.

One is the impact on culture. If you go back to polling in the 1960s, a majority of white people said that whites should have the right to keep Black people out of neighborhoods. Today, virtually no one would say that, and so having a law on the books can change culture and delegitimize discrimination. I think it did a good job of delegitimizing racial discrimination, and the aim is that the Economic Fair Housing Act would play a similar role.

In terms of the consequences, if we look at levels of racial segregation in this country, they remain far too high, but they have declined about 30 percent since 1970.

Black-white segregation is often measured with a dissimilarity index, and it stood at 79 in 1970, and it’s at 55 in 2020. Meanwhile, income segregation has been headed in the opposite direction. It’s basically doubled since 1970. And so, while the Fair Housing Act is imperfect, it has had a positive impact on issues of racial discrimination in housing. And I think an Economic Fair Housing Act could have similar effects.

In terms of the statistical analysis required, one of the arguments for an Economic Fair Housing Act is that it would be easier to show that exclusionary zoning policies have a disparate economic impact.

Jerusalem Demsas

Oh, interesting. Why is that?

Richard Kahlenberg

Well, right now it’s a bit of a bank shot. These laws are effectively aimed at excluding based on income and then you have to show how race and income interact. So it just removes one step in the process.

Jerusalem Demsas

When the federal government has attempted to impose desegregation on communities, particularly with school desegregation, we see a ton of backlash, much of which is successful at maintaining segregation.

Are you worried that legislation like this will just result in states and localities getting more wily at getting around this new law and not solve the underlying problems in the long run?

Richard Kahlenberg

So I would say a couple of things.

One, if you look at the history of school desegregation, there was enormous backlash to federal efforts to desegregate. But, at the end of the day, school desegregation in the South worked. That is to say, although there was political resistance, over time the South went from being the most segregated part of the country in terms of their schools, to the most integrated part of the country, and we saw the achievement gap between Black and white students fall considerably during the era of desegregation.

So, although it took a long time — there was enormous inaction between Brown in 1954 and when federal government efforts to desegregate actually took off in the late 1960s — it was enormously effective for an important group of students who benefited from the policy.

More to the point, the Fair Housing Act was very controversial at the time. There were US senators who lost their jobs over supporting [fair housing]. But today, the concept is broadly accepted, and you wouldn’t gain political traction from saying you want to repeal the federal Fair Housing Act.

Jerusalem Demsas

Contrasting this with other attempts by the federal government to address this problem — for instance, the grants the White House has proposed to provide planning and technical grants for localities that want to willingly re-zone — it seems like the winds are turning toward offering carrots (and very small carrots at that) rather than engaging in anything that could appear punitive.

Do you think the political winds are shifting away from being able to enact policies like the Economic Fair Housing Act?

Richard Kahlenberg

Well, let me answer that in a couple of ways. I’m very supportive of efforts to either essentially bribe localities into doing the right thing through a Race to the Top program if you don’t reduce exclusionary zoning. I think that’s a good effort, but I think that the Economic Fair Housing Act offers something both substantively and politically that’s better.

I think part of the problem with the existing federal proposals is that they suggest that exclusionary zoning is bad policy because it blocks opportunity and makes housing less affordable and damages the planet. All of those things are true, but what I think the Economic Fair Housing Act tries to do is say it’s not just bad policy, it’s immoral for governments to erect barriers that exclude and discriminate based on income ... because it’s shameful what’s going on.

I also think the Economic Fair Housing Act framing will do a better job of raising awareness of the issue. I’m working on a book now called The Walls We Don’t See because people’s eyes glaze over when you talk about zoning.

People understand that when white people were throwing rocks at buses carrying Black children to school in order to desegregate, that’s wrong. It’s dramatic. The Economic Fair Housing Act does a better job than those other efforts to make people see what’s going on. It’s also more comprehensive than Build Back Better’s Unlocking Possibilities Program, which would reach a small number of places that are incentivized to make reforms. But this is comprehensive, it’s everywhere.

So, I think this would be more effective than all those other approaches. But going back to the point I was making earlier, I think the economic framing is absolutely essential. I’ve been reading Heather McGhee’s book, The Sum of Us, which I think is just brilliant.

One of her points is that if you want to make progress in society, you have to show white people how racism hurts them, and this is a classic example of where zoning began as racial in character and shifted to economic in order to exclude by race and ended up pulling in a lot of working-class whites as well.

Jerusalem Demsas

Can you speak more to the political coalition-building benefits of the economic framing approach?

Richard Kahlenberg

If you look at what drove Donald Trump, a lot of it was what Michael Sandel called the politics of humiliation. And it is humiliating for working-class white people with less education to feel as though cultural elites are looking down on them — as they do.

I would never say it’s as bad as racism, but there is a way that economic framing helps unite these two groups that have been at war with each other for decades — working-class white people and people of color. In a common sense, they are being looked down upon for different reasons by well-to-do white people. So I think the politics are powerful here.

We’ve seen that in Oregon and California where there are these fascinating political coalitions of conservative rural white legislators and urban liberal legislators of color who, not always, but in large measure have come together to defeat wealthier white suburban legislative interests in making the case for reform.

Jerusalem Demsas

The Economic Fair Housing Act which you have been fighting for for years is now getting legislative attention.

Richard Kahlenberg

I’m excited that there’s interest on Capitol Hill and that Rep. Emanuel Cleaver, who is chair of the subcommittee on housing in the House, is working on draft legislation to create an Economic Fair Housing Act.

He held hearings back in October on exclusionary zoning, and there’s a comment that he made at the beginning of the hearing which I found to be very profound. He said he was in Kansas City, he worked on zoning matters as a local official, and he said you just learn a lot about human nature and what people are really like when issues of zoning come up.

I think someone like him, who understands the importance of zoning and the way it affects disadvantaged people, working-class people, middle-class people who are excluded from higher-opportunity neighborhoods — I’m excited that someone like him is interested in moving forward with this type of legislation.