Government has flouted its obligation to affirmatively further fair housing

President Obama and Secretary of Education Arne Duncan claim that the poor achievement of African-American students is the “civil rights issue of our time.” Yet there is little chance that the achievement gap between white and black students will be narrowed significantly, as long as large numbers of disadvantaged children are concentrated in racially segregated and economically bereft urban neighborhoods. In these (to use William Julius Wilson’s term) “truly disadvantaged” neighborhoods, teachers are overwhelmed by the impediments to learning that children bring to school, and that reinforce each other in racially and economically isolated classrooms. None of this can change substantially until metropolitan areas are residentially desegregated.

An investigation by Nikole Hannah-Jones for ProPublica, “Living Apart: How the Government Betrayed a Landmark Civil Rights Law,” published this week, demonstrates that the Obama administration and its predecessors have done little to promote residential integration.

Specifically, Hannah-Jones exposes the contempt with which the federal government, for 45 years, has ignored its obligation under the 1968 Fair Housing Act to “affirmatively further” the goal of racial desegregation. Although the Act requires state and local governments that receive federal housing or community development funds to use these funds in ways that integrate their communities, the Department of Housing and Urban Development has dispersed funds over this period to jurisdictions that not only ignore the requirement but that fraudulently attest that they are complying with it. In one case (concerning Westchester County, N.Y.), private attorneys had to file a 2006 suit under the federal False Claims Act to provoke the federal government to intervene and require that federal housing funds not be used to reinforce racial segregation. But the case was unique.

I will add only this to Hannah-Jones’ ProPublica narrative: The scandal is worse because the federal government has had a constitutional obligation to affirmatively further racial desegregation, even irrespective of the Fair Housing Act’s mandate. This obligation stems from the federal role, noted in Hannah-Jones’ article, in creating residential racial segregation in violation of the 13th and 14th Amendments. Even under the most conservative constitutional interpretations, as expressed by current and recent Supreme Court majorities, a history of decisive “state action” to ensure the residential separation of the races imposes on federal, state and local authorities a constitutional obligation to undo this separation, with both race-neutral and race-conscious policies.

Federal, state and local governments’ affirmative role in promoting racial segregation has been documented by many scholars, lawyers, and journalists, most notably (but not restricted to) Kenneth Jackson, Douglas Massey and Nancy Denton, Alexander Polikoff, Christopher Bonastia, Michael Danielson, Charles Lamb, Ira Katznelson, Arnold Hirsch, Thomas Sugrue, and William Julius Wilson (whose afterword to the recent 25th anniversary edition of his book, The Truly Disadvantaged, is essential reading for anyone exploring this topic). Perhaps no one brought all this material together better than Robert Weaver, President Johnson’s Housing and Urban Development (HUD) secretary, in his 1948 (then re-issued in 1967) book, The Negro Ghetto. Yet President Nixon’s first HUD secretary, George Romney, went much farther than Weaver had dared in attempting to reverse the segregationist pattern of federal policy.

Hannah-Jones describes how Romney (father of Mitt, the Republican presidential nominee), was rebuffed in efforts to enforce the 1968 Act’s “affirmatively further” provision. The elder Romney, a former Michigan governor, proposed to deny federal funds to racially homogenous white communities that maintained exclusionary zoning ordinances and refused a fair share of public and federally subsidized low– and moderate income housing. When Nixon vowed that the federal government would not require any suburb to integrate, notwithstanding that suburb’s explicit and unconstitutional actions taken to create and preserve racial segregation, he established a federal policy that has been followed by subsequent administrations. Hannah-Jones’ interviews with housing officials from these administrations, documenting their fears of challenging unconstitutional housing patterns, adds important new information to this shameful record.

In a recent study, Mark Santow and I showed how, in George Romney’s own state of Michigan, it is impossible both in theory and practice to narrow the achievement gap without aggressive action to affirmatively further the cause of fair housing. In a subsequent summary of public housing history, I showed how federal, state and local governments purposefully concentrated low-income African Americans in dense urban public housing while simultaneously subsidizing the movement of whites to single family homes in the suburbs. These policies, not merely racial in effect, but in explicit intent, contributed mightily to the creation of the segregated metropolitan housing patterns that persist to the present.

There is a widely shared consensus that our nation is now characterized by “de-facto” segregation. That term is inaccurate and misleading. Our residential segregation was not created by subtle demographic or economic policies, or by personal choices; it was created by state action. Hannah-Jones has shown how the federal government has refused to reverse these policies, even when specifically ordered by legislative language to do so.

Although the Obama administration has taken some small steps to attack residential segregation, it is inconceivable that much can be done as long as the consensus, shared across the political spectrum, persists that our segregated housing patterns are accidentally “de facto,” caused, as a Supreme Court Justice once said, only by “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears.” We need more studies like the ProPublica investigation, studies that can play a role in shattering this consensus and shining a light on the history of purposeful state action to segregate the nation. Kudos to ProPublica.