On Monday the nation came together to honor the legacy of Dr. Martin Luther King Jr. But on Wednesday the justices of the Supreme Court assemble to consider taking away one of the tools used to help create the vision of an equal America advocated by Dr. King, under a civil rights law passed in his memory.
In the days following the assassination of Dr. King, President Lyndon B. Johnson urged Congress to pass the Fair Housing Act as a tribute to the slain civil rights leader, which Congress did, on April 10, 1968. Dr. King had described the "other America" that housing discrimination created, discrimination aided and abetted by state and federal policies. States had enforced racial segregation through discriminatory zoning laws, and private landlords and realtors had refused to deal on equal terms with all applicants. And when it came to the federal government, the Federal Housing Administration had required racially restrictive covenants in deeds on homes bought with certain mortgages insured by the federal government and had refused to insure other mortgages that would have resulted in racially integrated neighborhoods.
Dr. King had powerfully highlighted the "islands of despair" that substandard segregated housing forced on black communities. The civil rights movement's struggle against racial segregation was about ending racialized poverty, increasing educational opportunity, and fostering safe streets but was even more fundamentally, in Dr. King's words, a "struggle for freedom and human dignity."
Now the Supreme Court will be weighing in once again on that struggle, hearing arguments in a case out of Texas that seeks to limit the reach of the Fair Housing Act, a law that has been crucial to combatting racial discrimination and segregation in America's neighborhoods.
The Act states that it is "unlawful to refuse to sell or rent ... or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Another provision prohibits the terms of housing loans and other financial assistance from being set according to racial bias. Supporters of the bill in Congress emphasized that removing barriers to fair housing would not only expand housing choices for African Americans but promote racial integration to the benefit of all Americans.
Although the nation has made considerable progress toward racial equality since 1968, housing segregation is unfortunately not a thing of the past. Recent U.S. census data shows that present-day residential segregation is more pervasive than many Americans realize, and that patterns of racial segregation from the days of state-sponsored discrimination persist. Lack of fair housing options continues to carry significant consequences for racial and ethnic minorities, and African Americans in particular--economically, socially, professionally, and with respect to educational opportunities. This discrimination thwarts prospects for long term-prosperity for individuals and communities.
Recognizing that housing discrimination today often occurs in ways that may be more subtle than the explicitly biased policies of the past, courts have recognized that the Fair Housing Act, like other civil rights statutes, encompasses claims against practices that have a "discriminatory effect"--practices that result in a disparate impact on a group of persons or create, increase, or reinforce segregated housing patterns--as well as those that are proven to be motivated by discriminatory intent. Indeed, over the past several decades, every court of appeals to have considered the issue has agreed that the statute permits such claims.
Nonetheless, Texas is asking the Supreme Court to find that the Fair Housing Act does not permit residents the opportunity to challenge practices that are discriminatory in operation as long as they are appear neutral on their face. Texas even suggests that the Fair Housing Act would violate the Constitution's Fourteenth Amendment if it permitted disparate impact claims as well as claims against intentional forms of racial discrimination. But these arguments cannot be squared with the text and purpose of the Fair Housing Act or the Constitution's text and history.
In order to realize the Fourteenth Amendment's guarantee of equality, Congress has the authority to prohibit laws and practices that result in racial discrimination, including policies that may be fair in form but discriminatory in fact. Indeed, the Reconstruction-era Congress that passed the Fourteenth Amendment enacted civil rights laws that targeted not only explicit racial classifications but neutrally worded, generally applicable laws that were used to deny basic civil rights to African Americans. The protections of the Fair Housing Act against housing practices that have a discriminatory effect are in line with this historical commitment to ensuring the broad mandate of equality enshrined in our Constitution.
In commemorating Martin Luther King Jr. Day, the nation collectively paused a moment to take stock of how far we have come in realizing equality and justice, and how far we have left to journey. Given that there is unquestionably far to go when it comes to fair housing opportunities and conditions, the Supreme Court shouldn't dishonor Dr. King's memory by removing one of the tools we have used to build bridges from the "islands of despair" of racialized poverty and segregation that Dr. King so powerfully decried.