The U.S, unfortunately, does not have the best record of providing safe and affordable housing to all citizens regardless of race and income.
Policies like restrictive covenants, sub-prime loans, and de jure segregation still have dangerous effects to this day. Although the Fair Housing Act of 1968 outlawed discrimination in housing practices, many lending agencies and developers still found ways to “cleverly” deny housing to those who were in low-income families.
However, because of this law, and a few other historic cases (ex. Shelley vs Kraemer), there is some precedent for suing on the basis of race and income discrimination.
At this point in history, it is possible, although difficult, to prove that you have been discriminated against when applying for housing.
But that might change very soon.
On August 19, 2019, the U.S. Department of Housing and Urban Development (HUD) proposed a measure that will make it even more difficult to prove disparate impact in housing cases. If this proposal goes into affect, defendants who wish to sue on the basis of housing discrimination will have to prove that a landlord or property manager denied their application because of their race, sex, or general identity, explicitly.
Let’s talk about why this is so dangerous.
A Very Brief History of (Un)Fair Housing
Many people, including myself, believed that much of what we know as segregation was caused by individual’s actions. We know that 50 or 60 years ago, POC would be chased out of certain neighborhoods if they attempted to buy houses there.
We know that Brown vs Board of Education struck down the “separate but equal” rule of law. This made segregation illegal. But that wasn’t the beginning or end of it.
There is something very important for us to keep in mind during this discussion. Up until the 1960s it was illegal for any Black person to purchase a home in most middle class neighborhoods where there was a majority of white residents.
And in the areas where it wasn’t explicitly outlawed, potential Black residents often faced violence at the hands of their white neighbors.
Let that sink in.
This has lasting impact today. In the Color of Law, Richard Rothstein argues that exclusionary zoning ordinances were created specifically to keep lower-income POC from moving into white neighborhoods, (pg. 59). City lines were drawn in a way that told bank lenders exactly where the majority of Black neighborhoods were, and allowed them to deny loans based on this map. This practice is known as redlining.
This is important today because 67% of low income Black families are likely to continue living in these “redlined” districts for several generations (Rothstein, pg. 187).
Lower income POC are the group most likely to be affected by HUD’s proposal.
So what exactly is HUD doing?
Essentially, HUD wants to lower the effectiveness of the “disparate impact” argument.
Disparate Impact can be defined as “An unnecessary discriminatory effect on a protected class caused by a practice or policy (as in employment or housing) that appears to be nondiscriminatory.”
An example of disparate impact in housing is a property provider requiring 3 or 4x the monthly rent to qualify for a unit even though that is well beyond the amount most applicants make. We know that individuals in lower income brackets are unlikely to meet this requirement, and even though there is no indication at all that they will not have enough to pay their rent on time, they can still be denied.
The National Housing Law Project adds,
“Without disparate impact theory, people experiencing housing discrimination would have to show that a housing provider, city, or other entity intended to discriminate against them, which is very difficult to do.
Disparate impact cases are already incredibly difficult to prove under HUD’s current standards. Even after decades of the use of disparate impact theory, housing providers and insurance companies have still been able to succeed. By making disparate impact cases even more difficult, HUD will basically allow housing providers, insurance companies, and others to have discriminatory policies in place without accountability — unless they are explicit in their discrimination.”
(more information available at the website linked below.)
By “outlawing” disparate impact, HUD would be making it nearly impossible to sue for housing discrimination without a property manager literally writing “NO POC ALLOWED IN MY BUILDING” in a housing application.
And we all know discrimination is much more subtle than that.
What Can You Do?
The number one thing we can do is share information to friends and family, both online and in person, on these policies. We don’t have to understand every nuance of the law to recognize discrimination. It’s important to be especially vocal between now and October 18th because HUD is accepting comments up until then.
Head over to The Fight for Housing Justice’s website to see how to get more involved!