Observers have long believed that the federal government has fallen down on the job when it comes to enforcing the 1968 Fair Housing Act’s mandate to “affirmatively further” desegregation—that is, its mandate to promote integration proactively rather than simply preventing overt discrimination. After decades of executive inaction on the issue, though, new rules being announced Wednesday by the Obama administration appear to address the problem directly.
Understanding the news requires a bit of backstory. ProPublica defined the specific issue at hand succinctly in a 2012 piece. (HUD is the federal Department of Housing and Urban Development.):
HUD’s largest program of grants to states, cities and towns has delivered $137 billion to more than 1,200 communities since 1974. To receive the money, localities are supposed to identify obstacles to fair housing, keep records of their efforts to overcome them, and certify that they do not discriminate.
The problem?
ProPublica could find only two occasions since [1972] in which the department withheld money from communities for violating the Fair Housing Act.
On June 25 of this year, the Supreme Court ruled on a related (and long-disputed) issue, declaring that housing policies can be considered discriminatory in practice even if they are not specifically discriminatory in intent. As Slate’s Mark Stern wrote about the case, which involved the state government of Texas:
Texas made low-income housing available primarily in low-income, predominantly black neighborhoods. The effect of this decision perpetuated segregation. Texas may not have enacted this policy explicitly to keep blacks segregated from whites. But under the disparate impact claim which the court just affirmed, minorities can still sue Texas for enacting a policy that furthers segregation.
Perhaps emboldened by that ruling, the Obama administration now says it will use HUD’s leverage, at long last, to require affirmative integration. Per the Washington Post, which had the scoop earlier Wednesday:
The new rules, a top demand of civil-rights groups, will require cities and towns all over the country to scrutinize their housing patterns for racial bias and to publicly report, every three to five years, the results. Communities will also have to set goals, which will be tracked over time, for how they will further reduce segregation.
Officials insist that they want to work with and not punish communities where segregation exists. But the new reports will make it harder to conceal when communities consistently flout the law. And in the most flagrant cases, HUD holds out the possibility of withholding a portion of the billions of dollars of federal funding it hands out each year.
The caveat here for celebrating progressives, of course, is that a more conservative administration might take office in 2017 and decide that HUD doesn’t actually have any obligation to promote integration—just as Richard Nixon did decades ago, when he set the passive precedent that Obama is now trying to reverse.
