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New housing rule: one more step toward desegregation?

March 13, 2013

petervickery

Advocates of desegregation should take heart, and planners should take notice, because at last it’s official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD’s new rule states that “[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin” 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute’s discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice “caused or predictably will cause a discriminatory effect.” The burden then shifts to the respondent to prove that the practice “is necessary to achieve one or more [of the respondent’s] substantial, legitimate, nondiscriminatory interests.” If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests “by another practice that has a less discriminatory effect.”

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.

Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it “creates, increases, reinforces, or perpetuates segregated housing patterns.” Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.

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