More historical perspective on the Fair Housing Act

As we've discussed recently, the Supreme Court is set to decide by June whether the Fair Housing Act covers policies and practices that contribute to racial segregation in housing where there has been no showing they were intended to do so. (See here and here, for instance.)

This morning, Brian discussed some of the historical practices that motivated the Fair Housing Act and other civil rights laws of the 1960s.

As a complement to the Epps piece Brian highlighted, check out Washington Post opinion writer Charles Lane's discussion of the role of the government in perpetuating housing discrimination during the mid-20th century, including the government's embrace of racially-restrictive covenants on who could buy homes. These contractual provisions — designed to keep out "what the federal government called 'inharmonious racial groups'" — were "actively encouraged" by the Federal Housing Administration from 1934 to 1948, Lane recounts.

Noting the progress made since the passage of the Fair Housing Act in 1968 but also that census data still show a lot of racial segregation in housing, Lane frames the argument about the continued vitality of disparate-impact housing discrimination claims this way:

[T]he question is how active Big Government should still be in the fight to undo the residential segregation that Big Government did so much to create.

I am reminded of Justice Ginsburg's metaphor from her dissent in Shelby County v. Holder, in which the Supreme Court struck down the statutory formula that undergirded the preclearance requirement, a key element of the Voting Rights Act: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

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