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Understand legal frameworks to address racial disparities and discrimination in housing
Segregation and its harmful effects persist in cities across the United States, as a result of decades of discrimination by all levels of government and the private sector. These issues drive disparate outcomes in many areas, including health, education, homeownership, and homelessness. Cities are working to address housing disparities in innovative ways, and in doing so often must confront complex or confusing legal landscapes. Two of the most important legal frameworks governing these local efforts are the Supreme Court’s interpretation of the Fourteenth Amendment’s Equal Protection Clause and the federal Fair Housing Act. State law may also preempt the use of racial considerations in policymaking. Policymakers need to understand the legal frameworks governing housing initiatives that address racial disparities in order to assess risk and tailor policies to their jurisdictions. The information provided here is a starting point for local attorneys and policymakers; a deeper discussion of applicable case law is available in a related legal analysis published by the Housing Solutions Lab. Policymakers should also bear in mind that this area of the law contains many unsettled questions and the Supreme Court has become less accommodating of race-conscious remedies since many of the major cases discussed here were decided.
Understanding the Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment guarantees to all people in the United States “the equal protection of the laws” and limits the government’s ability to burden or benefit any person on the basis of race. Courts apply the highest level of scrutiny, known as “strict scrutiny,” when reviewing Equal Protection challenges to policies that impose burdens or provide benefits based on race (sometimes referred to as “race-conscious” policies). In contrast, “race-neutral” policies not explicitly based on race receive a much lower level of scrutiny, even if they disproportionately impact (either positively or negatively) certain racial groups.
Race-neutral housing policies and the Equal Protection Clause
Policies that do not draw distinctions based on race generally receive the most lenient form of review in court, known as “rational basis” review.1 Courts require that such a race-neutral policy be rationally related to a legitimate governmental objective. For example, policies that target benefits based on income in order to stabilize low-income households, such as public housing or rental assistance programs, receive rational basis review. Many race-neutral housing policies, such as down payment assistance and other first-time homeownership assistance, rental subsidies for low-income tenants, or home revitalization initiatives like the HOME Rochester program, can serve to address disparities resulting from historical housing discrimination, while being justified by rational basis review. However, because these policies rely on targeting mechanisms that are less precise than specific race or ethnic categories, cities hoping that these policies will have the effect of mitigating racial housing disparities must devote sufficient care and resources to implementation to ensure that marginalized communities receive their benefits, including engagement with trusted community partners.
Race-conscious housing policies and the Equal Protection Clause
Courts apply strict scrutiny to policies that target race explicitly. Under this standard, governments enacting race-conscious policies must provide substantial evidence that the policy advances a compelling government interest, using methods narrowly tailored to achieve that interest. While originally used to challenge racially exclusionary laws, the Supreme Court has also applied this standard to policies intended to benefit groups historically targeted by discrimination, such as affirmative action in education. Cities seeking to implement race-conscious strategies must therefore be careful to make sure any given policy fulfills a compelling governmental interest and carefully shape the policy to meet the Court’s definition of “narrowly tailored.” The next two sections address the meaning of the terms “compelling government interest” and “narrowly tailored” in this context.
The compelling governmental interest requirement
A government entity enacting a race-conscious policy must provide substantial evidence that the policy serves a compelling governmental interest. The Supreme Court has only recognized one compelling interest applicable to housing policy: a government’s interest in remedying its own violations of the Constitution or of antidiscrimination laws. This interest does not extend to remedying discrimination by another level of government or by private individuals or corporations.
The foundational Supreme Court case City of Richmond v. Croson (1989) provides an example of what courts require to prove a compelling governmental interest. In Croson, the Supreme Court struck down the city’s preferential hiring program for minority contractors because the city only presented evidence of discrimination in the construction industry nationwide, rather than on the local level. Since deciding Croson in 1989, the Supreme Court has not affirmed any race-based remedial programs, making it harder to assess out how courts will assess cities’ claims of remedying past discrimination. However, many cities have undertaken efforts to document the ways in which they have contributed to segregation and racial disparities as part of plans they developed in response to HUD’s 2015 Affirmatively Furthering Fair Housing regulations, which may help provide evidence for this claim. Practices such as exclusionary zoning, segregated public housing sites, and the displacement of Black communities through highway construction may all provide evidence of past discrimination.
The narrow tailoring requirement
Strict scrutiny also requires that race-conscious policies be narrowly tailored to achieve the government’s interest. A race-conscious policy must be:
- A last resort, meaning that the city has attempted or rigorously considered race-neutral alternatives and determined that they will not work as well as a race-conscious policy. Policymakers should be prepared to marshal evidence demonstrating that targeting assistance by income, geography, or other factors is insufficient to achieve the city’s compelling interest.
- Neither over- nor under- inclusive. Programs must be targeted only to the groups or individuals suffering harms from the discrimination being remedied. For example, a federal district court recently ruled that a Department of Agriculture pandemic relief program for minority farmers was overinclusive on the grounds that a minority-owned farm “having the most profitable year ever” that had “never been discriminated against” would nevertheless qualify for relief. A race-conscious program also must not exclude potential beneficiaries who might have also experienced discrimination. For example, the Sixth Circuit, in striking down a federal restaurant pandemic relief program, took issue with its “over 51% minority or women owned” requirement because it excluded the plaintiff’s restaurant, which was 50% owned by a Hispanic woman. The court found that the program was underinclusive, and therefore not narrowly tailored. Waivers may help to guard against over- or under-inclusivity by allowing people with valid claims who might be screened out by the program requirements to apply for relief.
- Avoid the use of racial quotas. Courts consistently disfavor programs that rely on racial quotas, such as fixed proportions for particular racial groups in university admissions. In Croson, the Supreme Court called into question the City of Richmond’s requirement that 30% of construction contracts be awarded to minority-owned firms. Although Richmond’s population at the time was 50% Black and minority-owned firms had in recent years received only 0.67% of prime construction contracts, the Court found the use of a quota unjustified without more “direct evidence” of discrimination on the part of city officials in awarding contracts.
- Provide time-limited relief or periodic review to determine whether the use of race-conscious criteria is still necessary.
The foundational Supreme Court case City of Richmond v. Croson (1989) provides an example of what courts require to prove a compelling governmental interest. In Croson, the Supreme Court struck down the city’s preferential hiring program for minority contractors because the city only presented evidence of discrimination in the construction industry nationwide, rather than on the local level. Since deciding Croson in 1989, the Supreme Court has not affirmed any race-based remedial programs, making it harder to assess out how courts will assess cities’ claims of remedying past discrimination. However, many cities have undertaken efforts to document the ways in which they have contributed to segregation and racial disparities as part of plans they developed in response to HUD’s 2015 Affirmatively Furthering Fair Housing regulations, which may help provide evidence for this claim. Practices such as exclusionary zoning, segregated public housing sites, and the displacement of Black communities through highway construction may all provide evidence of past discrimination.
The Fair Housing Act
The federal Fair Housing Act prohibits discrimination by both public and private actors in the provision, advertising, and terms and conditions of housing. Under the Fair Housing Act, it is illegal “to refuse to sell or rent,” to “otherwise make unavailable or deny,” or to discriminate in advertising based on protected statuses, including race, color and national origin. Policymakers should also be aware of state and municipal fair housing and anti-discrimination laws when considering race-targeted initiatives.
As in the Equal Protection context, courts apply the same level of scrutiny under the Fair Housing Act to policies that seek to benefit racial minorities (for example, by promoting integration) as they do to policies that use race as an exclusionary mechanism. The Supreme Court has not set guidelines for how courts should analyze such laws. A few lower court cases, however, suggest a standard similar to strict scrutiny. In United States v. Starrett City Associates (1988), the Court of Appeals for the Second Circuit struck down a private developer’s use of racial quotas to ensure one of its housing developments was integrated, relying on the lack of evidence of racial discrimination in the housing development as well as the lack of an end date for the use of racial quotas. However, the court suggested that a race-conscious housing policy may be permissible if it was temporary, flexible, and designed to achieve the Fair Housing Act’s goal of integration.
Federal courts have treated judicial orders to build public housing in more integrated neighborhoods based on past Fair Housing Act violations in an inconsistent manner. In the 1976 case Hills v. Gautreaux, the Supreme Court held that a district court had the authority to order HUD to remedy their violations of the Fair Housing Act and the Equal Protection Clause. About a decade later, the Second Circuit upheld a court-ordered desegregation program that required the construction of new public housing units in majority-white neighborhoods to remedy a history of segregation. In contrast, the Court of Appeals for the Fifth Circuit, in Walker v. City of Mesquite (1999), overturned a federal district court order to build a public housing development in a majority-white neighborhood to remedy the housing authority’s past practice of only building public housing in communities of color. The appeals court held that the district court had not adequately considered race-neutral alternatives before issuing a race-conscious court order, and therefore the policy was not narrowly tailored.
Understanding disparities and discrimination at the local level
While the demands of strict scrutiny mean that local governments must carefully assess the risks of race-conscious policymaking, cities nevertheless have a wide range of tools at their disposal for addressing racial disparities in housing. Understanding local legacies of discrimination as well as the scope of housing disparities provides a strong foundation for equitable policymaking. A variety of data resources can help cities understand their local geographies of equity and opportunity. Moreover, many cities have begun to reckon with their own discriminatory housing practices, providing models that can serve as starting points for their peers across the country. Undertaking these processes of research and reflection can help cities to determine what kinds of strategies are best suited to addressing their present challenges.