According to a new law review article, residential segregation has declined sharply over the last five decades. The article observes that “in 1970, 80% of African Americans would have had to switch neighborhoods for blacks to be spread evenly across the typical metropolitan area. By 2010, this proportion was down to 55%, and was continuing to fall.” These findings implicate the Fair Housing Act, which prohibits both discriminatory housing practices motivated by an intent to discriminate (refusing to rent to blacks, for example), and neutral practices which results in an adverse effect on a racial group (courts call this “disparate impact liability“).
For starters, the trend toward integrated communities means that the role of the Fair Housing Act in reducing residential segregation is smaller now than ever. But while many of the benefits of the Fair Housing Act no longer exist, the undeniable costs of race-conscious laws remain the same. Such laws treat people not as individuals, but as members of their racial group. And they delay the time when character, not race, will determine an individual’s worth.
The fact that fewer communities are segregated also makes the Fair Housing Act less effective. As the article notes, integrated communities make it hard for plaintiffs to prove any sort of Fair Housing Act violation, whether based on intentional discrimination or disparate impact. And even in cases in which plaintiffs prevail, those in integrated communities cannot take advantage of many of the remedies available to Fair Housing plaintiffs in segregated neighborhoods.
Two years ago, the Supreme Court invalidated a portion of another antidiscrimination statute, the Voting Rights Act, because changed circumstances made it so that the law’s benefits no longer justified its costs. The same could be said for the Fair Housing Act, and Congress should reassess the law to ensure that it is necessary today.