Martin Luther King Jr.’s legacy on fair housing is in jeopardy

As we commemorate Martin Luther King Jr.’s birthday, we should remember an important part of his legacy – the Fair Housing Act of 1968, passed with a bipartisan vote of Congress as a tribute to King days after his assassination.

Proponents wrote the law to be a comprehensive remedy for discrimination in housing and to foster “truly integrated and balanced living patterns.”

Yet on Wednesday, the U.S. Supreme Court is to hear arguments in a case – Texas Department of Housing and Community Affairs v. The Inclusive Communities Project – that will decide whether the act’s protections should be cut back.

The Fair Housing Act has had a positive impact on our society. Fully two-thirds of Americans today prefer to live in racially integrated neighborhoods. The law is still needed because our neighborhoods do not yet reflect the diversity of our nation as a whole. Social science measures, for example, show that African-American families in the Sacramento and San Francisco metropolitan areas live in neighborhoods as segregated as those in Atlanta.

The pattern is California-wide and nationwide and extends to other minority groups. The segregation levels of Latinos and Asian Americans are lower but have not improved since 1980. Minorities live in poorer neighborhoods, but that does not result from poverty alone. Minority families at every income level live in poorer neighborhoods than white families with comparable incomes.

Housing segregation has consequences in the quality of schools our children attend, economic mobility and health and environmental outcomes. As the late Sen. Edward Kennedy of Massachusetts, who supported the original Fair Housing Act and its amendments in 1988, put it: The “soundest way to attack segregated education is to attack the segregated neighborhood.”

Federal courts and agencies have consistently interpreted the broad purpose of the act to provide comprehensive protections against discrimination in housing. Not only does the law require review of a decision by a city or developer motivated by discrimination, but also of more subtle “disparate impact” discrimination. That form of discrimination results from practices that are, on their face, neutral, but have their origins in highly questionable circumstances.

An example is a case in Modesto in which Latino residents won the right to prove that sewer lines, storm drains and other municipal services were denied them on a discriminatory basis without any justification.

The question the Supreme Court will consider is whether the act provides a remedy for practices that harm minorities under suspicious circumstances – practices that cannot be justified, are unnecessary and for which ready alternatives exist. Many important court rulings have used the disparate impact analysis to determine if illegal discrimination occurred.

Based on my experience bringing housing discrimination cases for minority families and overseeing enforcement of the Fair Housing Act as head of the Civil Rights Division of the U.S. Department of Justice, I believe that how the court answers this question will determine how effective the Fair Housing Act will be in achieving residential integration.

In the early years of the act, defendants often did not hide their discriminatory motives. Today, almost no defendant will admit to discrimination.

Covert and cleverly disguised discrimination now is the norm. Proof of disparate-impact discrimination is often more reliable than an inquiry into motive because courts can consider a full evidentiary record – statistics, history, prior conduct and other objective factors.

How much is the Fair Housing Act at risk?

There is reason for concern. The Supreme Court usually hears arguments in cases when there is a split in authority among federal courts. Here, there is no split.

The federal courts have uniformly approved the use of disparate-impact discrimination analysis for more than four decades. This is an unusual case.

We can only hope that the Supreme Court will consider what Justice Anthony Kennedy – the likely swing vote – wrote in a school integration case, that “this nation has a moral and ethical obligation to fulfill its historical commitment to creating an integrated society.”

King’s legacy, the Fair Housing Act, surely embodies that obligation.

Bill Lann Lee, a lawyer in Oakland, served as assistant attorney general for civil rights in the Clinton administration. He was one author of an amicus brief filed by 30 civil rights groups in the Inclusive Communities Project case.