The year 2008 marked the fortieth anniversary of the passage of the Fair Housing Act (FHA), yet housing discrimination and related socioeconomic problems persist. The formal barriers to residential integration have been lifted, but many African Americans still face limited housing choices, and live in poor neighborhoods that lack the infrastructure, and environmental safety, of nearby affluent neighborhoods. Residential segregation also deprives communities of color from receiving equal access to quality education, employment, homeownership, and wealth accumulation. According to the National Fair Housing Alliance, the U.S. Department of Housing and Urban Development (HUD) and state and local agencies have experienced a vast increase in housing discrimination complaints, from 5,874 in 1999 to 10,552 in 2008. See National Fair Housing Alliance, Fair Housing Enforcement: Time for a Change (2009). The increase in complaints may be attributable in part to increased enforcement and public education efforts, but housing discrimination persists at unacceptable levels.
African American home buyers and renters experience the negative effects of housing discrimination from the beginning of the housing search. When African Americans visit real estate or rental offices to inquire about advertised homes and apartments, they face a significant risk of receiving less information and less favorable treatment than comparable white customers. See Margery Austin Turner et al., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000 (Urban Inst., 2002). Even if African Americans are shown a comparable number of housing options, a strong likelihood exists that they will be shown options only in predominantly African American neighborhoods; in a 2006 study, the National Fair Housing Alliance found that “steering” occurred 87 percent of the time that testers were shown homes. See National Fair Housing Alliance, Unequal Opportunity—Perpetuating Housing Segregation in America: 2006 Fair Housing Trends Report (2006). Discriminatory behavior makes the housing search process more expensive for African Americans and other minority groups, and limits these groups’ choices to poorer neighborhoods with inferior housing. See John Yinger, Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination 89–103 (1995). While 75 percent of poor whites live in predominantly middle-income neighborhoods, 75 percent of poor African Americans reside in neighborhoods where 20 percent of the households live in poverty. See Myron Orfield, Segregation and Environmental Justice , 7 Minn. J. L. Sci. & Tech. 147 (2005). By limiting
African Americans to poorer neighborhoods, residential segregation has the practical effect of excluding African Americans from access to better public resources, such as schools.
The Fair Housing Act of 1968 is the primary federal statute prohibiting housing discrimination on the basis of race, but it does not address three other issues that are central to a discussion of race and communities: lack of infrastructure, access to environmental justice, and racial disparities in subprime lending. Even so, an analysis of the FHA is central to understanding the shortcomings of our approach to the reintegration of American communities in the post-racial era.
Background of the Fair Housing Act
A quick review of the historical circumstances leading to the statute’s passage is essential to understanding the FHA’s limited scope.
Residential segregation did not occur overnight. Prior to 1900, African Americans could be found in most neighborhoods in northern cities because patterns of urban social and spatial organization were dictated by small-scale manufacturing, commerce, and trade, which was not conducive to high levels of segregation by race. These patterns shifted after 1900 because American industrialization and World Wars I and II created a new demand for labor, encouraging African American sharecroppers to migrate north for industrial jobs. The rapid growth of the African American population alarmed many whites, and resulted in racially motivated communal riots between1900–1920. The communal violence pushed African Americans living in white neighborhoods into predominantly African American neighborhoods, thus cementing the movement toward residential segregation. Spatial segregation became the northern answer to the paternalistic Jim Crow laws of the South.
Racial violence did not subside in 1920; instead, it took on more controlled forms along the periphery of what had become an expanding African American ghetto. As the northern, urban migration continued, overcrowding made living conditions intolerable, thus forcing middle-class African American families to cross the line into white neighborhoods. According to sociologists Douglas Massey and Nancy Denton, these moves prompted escalating violence, including a wave of bombings, until it became apparent that violence was short-sighted strategy. See Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993).
After the 1920s, whites transitioned to using more institutionalized methods to fight the expansion of the African American enclaves, such as collective neighborhood action, and racially discriminatory covenants and real estate practices. In many areas, neighborhood improvement associations organized to prevent African Americans from entering white communities. These associations used various methods to achieve their goal, such as lobbying city councils for zoning restrictions, but their most important function was implementing racially restrictive covenants to prevent property owners from transferring their properties to African Americans. Local real estate boards also encouraged the use of restrictive covenants, and threatened to discipline agents whose practices contravened the preservation of segregated communities. The Federal Housing Administration’s racially discriminatory mortgage finance policies further institutionalized residential segregation practices by encouraging the use of restrictive covenants to preserve the value of neighborhood property values until 1950.
After World War II, the housing construction boom resulted in a great suburban expansion, but residential segregation continued. African Americans were excluded from suburban communities, and racial segregation continued in urban communities. According to Massey and Denton, the general cycle of racial turnover in urban communities from 1940–1970 can be characterized as the transition from “all white [to]
invasion [to] succession [to] consolidation or all black.” Id. at 46. In other words, as soon as African Americans moved into the fringe of a white neighborhood, white residents would sell and move to the suburbs, thus further exacerbating what Massey and Denton call the spatial, social, and economic isolation of the African American population. Id. at 149.
The urban riots of the late 1960s fueled public discourse on residential segregation. President Lyndon B. Johnson created the National Advisory Commission on Civil Disorders, popularly known as the Kerner Commission, to identify the cause of the riots, and to propose policies to prevent future incidents. The Kerner Commission concluded that the United States was “moving toward two societies, one black, one white—separate and unequal,” and that to continue with present policies would result in a permanent division of the country into two societies: “one, largely Negro and poor, located in the central cities; the other, predominantly white and affluent, located in the suburbs.” See National Advisory Commission on Civil Disorders, Report of the Commission on Civil Disorders (1968) .
The Senate was in the middle of a filibuster blocking civil rights legislation when the Kerner Commission’s findings were published. The findings, coupled with the urban rioting that occurred after Dr. Martin Luther King Jr.’s assassination, fast-tracked the passage of the Fair Housing Act. At the time of the FHA’s passage, legislators hoped that housing market regulation would foster two primary goals: equal opportunity in housing choice, and integrated living. The Act’s authors believed that creating opportunities for the middle-class African Americans who could immediately leave the ghetto was the key to changing the entire nation into an integrated society. Id. The Act did not aim to eradicate the unjust conditions of residential segregation because it was believed that future policies and legislation would address these issues. Id.
The Fair Housing Act and Residential Mobility
Under the FHA, victims of discrimination have standing to bring suits for their injuries and damages, and can file administrative complaints with HUD and HUD-affiliated state and local agencies. Although the FHA’s primary purpose is to regulate sales and rentals by homeowners and other entities, the statute also established a governmental obligation to promote fair housing through the Secretary of Housing and Urban Development. The FHA has succeeded in giving victims of housing discrimination legal and administrative recourses, and increasing awareness about housing discrimination, but racial segregation persists in American cities. Although HUD’s latest Housing Discrimination Study suggested that housing discrimination is decreasing, the study found that African Americans were still victims of discrimination in 20.3 percent of the instances in which they attempted to rent an apartment, and 16.8 percent of the time when purchasing a home. See Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000.
It has been argued that the FHA merely removed the formal barriers to integration, and eliminated overt discriminatory practices. Indeed, many white suburbs that experienced an increase in African American residents since 1970, such as Prince George’s County, Maryland, and Bellwood, Chicago, are now predominantly African American. See Mary Jo Wiggins, Race, Class, and Suburbia: The Modern Black Suburb as a “Race-Making Situation,” 35 U. Mich. J. L. Reform 749 (2002). The political economist David M. Cutler has suggested that discriminatory preferences continue to drive racial residential living patterns, that “[w]hites still prefer to live with other whites more than blacks prefer to live in white areas.” See David M. Cutler and Edward L. Glaeser, The Rise and Decline of the American Ghetto , 107 Journal of Polit. Econ. 3 (1999). The white choice not to integrate may be one of many reasons that an increasing number of middle-class and affluent African Americans live in majority-black communities. As defined by Robert Forman, nonsegregation implies both the right of people to remain where they are and the elimination of restrictions on moving to other areas. Some African Americans have developed apathy toward the idea of integration, given past resistance from the white population, or that the choice to live in a black community is empowering.
Another possible explanation for continued housing discrimination is that real estate agents are engaging in geographic steering, thus depriving parties of the choice to integrate. Geographic steering occurs when real estate agents systematically show white home buyers homes in more predominantly white neighborhoods and show minorities homes only in mixed or minority neighborhoods. The 2000 Housing Discrimination Study classified racial steering into information steering, segregation steering (which is similar to traditional racial segregationist practices), and class steering. Buyers often look to agents for advice on particular neighborhoods, making it harder to fight geographic steering because victims are often not aware that it is taking place. Nonetheless, persistent geographic steering may perpetuate current residential segregation by limiting the housing and neighborhood choices available to both minority and white homeowners.
The practice of redlining—lenders declaring some neighborhoods off-limits for mortgage loans—once went hand-in-hand with geographic steering. However, the FHA made it illegal for lenders to designate communities as unsuitable for mortgage backing or to establish lending criteria that were discriminatory. But the practice of redlining continues in some places because enforcement efforts, especially against large institutional lenders, are costly, complex, and extremely time-consuming.
Lack of Infrastructure in African American Communities
It is clear that residential mobility is just one of the many problems arising from housing segregation. As a result of the systematic discrimination of earlier decades, African American communities are often located in older parts of decaying city centers, such as downtown Detroit, with lower property values and insufficient public transportation. As businesses increasingly relocate to the suburbs, urban African Americans lose their jobs and have trouble finding new ones, which lowers the city’s tax base and jeopardizes the availability of municipal services. Dwindling community services, such as failing schools, drive taxpayers out of urban centers, further constraining fiscal resources and perpetuating the cycle of urban decay. As neighborhoods become identifiably poor and racially homogenous, businesses close. In many African American neighborhoods, the only commercial development is “down market” development such as fast-food restaurants, auto repair shops, and liquor stores, thus limiting access to other goods and services.
On the other side of the spectrum, some low-wage-earning African Americans seeking affordable, family-friendly housing find themselves living on the “urban fringe” in low-income, unincorporated urbanized areas bordering incorporated municipalities outside cities, or on the fringe of rural municipalities. Michelle Wilde Anderson argues that these unincorporated urban communities—divided into two overlapping categories: communities lacking rudimentary urban services such as water and street paving; and those that house a disproportionate share of facilities serving the larger metropolitan area, such as landfills, industrial complexes, and sewage treatment plants—suffer from their lack of a voice on the municipal level. See Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe , 55 UCLA L. Rev. 1095 (2008). The communities in the latter category are usually addressed only from the standpoint of environmental justice, poverty, and crime, but Anderson suggests that their unincorporated status is a structural dimension of their disenfranchisement.
Environmental Injustice in African American Neighborhoods
Many African American neighborhoods are disproportionately located in high-nuisance or environmentally unsound areas zoned for mixed residential/industrial/commercial use, exposing their populations to the negative environmental effects of industrial and intensive land use. But which came first, the racial makeup of the neighborhood, or the environmental hazard? It could be that housing discrimination practices have concentrated poverty in, and impeded social mobility from, African American neighborhoods, making it harder for these communities to object to potentially hazardous land uses in their vicinity.
Professor Sheila Foster has argued that environmental injustice exists if white flight, discriminatory housing practices, and falling housing prices have trapped African American families in environmentally hazardous neighborhoods. See Sheila Foster, Justice from the Ground Up: Distributive Inequalities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement , 86 Cal. L. Rev . 775 (1998). Professor Vicki Been puts forth another potential explanation to explain disproportionate placement of Locally Unwanted Land Uses (LULUs) in African American neighborhoods. See Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics? , 103 Yale L.J. 1383 (1994). Been suggests that land becomes undesirable once a LULU is sited near it, thus making it more affordable to low-income families. Because housing discrimination pushes African Americans into the least desirable neighborhoods, neighborhoods near LULUs are more likely to become predominantly African American. Id . Been further argues that once the area is African American, racial discrimination in the enforcement of zoning and environmental protection laws, provision of municipal services, and banks’ lending practices ensure the further decline of the neighborhood. Id.
In recent years, civil rights and environmental activists have joined forces to bring more attention to the issue of environmental injustice in minority neighborhoods. President Clinton’s Executive Order 12898, directing federal agencies to identify and address the negative environmental impact of their policies on poor and minority communities, has been one of the movement’s most important achievements. Even so, Professor Carlton Waterhouse has pointed out that federal agencies, particularly the Environmental Protection Agency, have been inconsistent in their compliance with Executive Order 12898, suggesting that agencies have not given this order top priority. Professor Waterhouse further argues that proposed legislation to codify the executive order is unlikely to address compliance problems because the legislation does not introduce new substantive obligations. See Carlton Waterhouse, Abandon All Hope Ye That Enter: Title VI, Equal Protection, and the Divine Comedy of Environmental Justice , 20 Fordham Envtl. L. Rev. 51 (2009). The joint movement has experienced some success with litigation and grassroots efforts, such as the Coal Run settlement (see “ Kennedy v. City of Zanesville : Making the Case for Water” on page 18) but the movement is hampered by market forces and the political disenfranchisement of its intended beneficiaries. See Carlos A. Ball, The Curious Intersection of Nuisance and Takings Law, 86 BU Law Review 819 (2006).
Racial Disparities in Subprime Lending
Despite the passage of the Home Mortgage Disclosure and Community Reinvestment Acts in the 1970s, racial discrimination has persisted in mortgage finance. HUD’s 2000 study on subprime lending suggested that predatory lending made homeownership more expensive for African Americans and poor families than for white and middle-class families. See United States Department of Housing and Urban Development, Unequal Burden: Income and Racial Disparities in Subprime Lending in America (April 2000). African Americans, even those of high income, were almost twice as likely to end up with subprime mortgages as low-income whites, even if they qualified for prime loans and offered a down payment. Nine years later, as the country is in the grip of the worst economic downturn since the Depression, Americans of all races and ethnicities are losing their homes, but it seems that minorities have been disproportionately affected. See United States Department of Housing and Urban Development , Unequal Burden: Income and
Racial Disparities in Subprime Lending in America (April 2000), and Barbara Ehrenreich and Dedrick Muhammad, The Recession’s Racial Divide , New York Times , Op. Ed., September 12, 2009.
Why are minority borrowers more likely to end up with subprime or adjustable-rate mortgages? A 2004 HUD pilot study, utilizing one minority tester and one white tester, with similar incomes, credit histories, and other attributes, showed that minority testers were more likely to receive less favorable treatment from mortgage institutions. See William C. Apgar and Allegra Calder, The Dual Mortgage Market: The Persistence of Discrimination in Mortgage Lending , in The Geography of Opportunity: Race and Housing Choice in Metropolitan America (Xavier de Souza Briggs, ed., 2005). Some subprime and adjustable-rate mortgage lenders engaged in “reverse redlining,” targeting low-income and minority borrowers who may have been vulnerable to deceptive, high-pressure marketing tactics because of their limited options. 2000 HUD-Treasury Task Force Report. Mortgage lenders argue that African Americans and other minorities have riskier credit histories, but data on credit quality are proprietary according to the mortgage industry, making it hard to separate “race from risk.” Briggs at 112. Several studies, including the 2000 HUD-Treasury Task Force Report , suggest that the concentration of subprime mortgage lenders in low-income and minority communities contributed to the racial disparity in subprime mortgage lending.
The 2000 HUD-Treasury report found that subprime lenders had a larger market share of low-income and minority communities, and that prime lenders were most active in white upper-income communities, creating a “dual mortgage market.” See United States Department of Housing and Urban Development and United States Treasury, HUD-Treasury Task Force on Predatory Lending Report (2000). Although subprime lenders do not necessarily use predatory lending practices, predatory lenders are generally found within the subprime market, making home buyers in these communities more vulnerable to predatory practices. The lack of competition between mortgage providers in these neighborhoods, and the lack of an upstream referral system between subprime affiliates and parent banks offering prime mortgages, may have deprived some otherwise qualified applicants from receiving prime mortgages at lower prices.
HUD has made great progress in educating the public about residential segregation and enforcing the FHA. Unfortunately, residential segregation is a problem eluding a simple solution, and the FHA stands as the only major piece of civil rights legislation to address it. A lengthy discussion of potential solutions is beyond the scope of this article, but at least part of the problem is the public’s perception that racial segregation is no longer a significant issue. The FHA may have broken down the most significant barriers to integration, but racist attitudes persist, and the real estate and mortgage-lending industries still engage in practices that produce racially disparate outcomes, regardless of their motivation.