Education Week, August 4, 2019: Why a fight over Trump’s housing policy matters to school segregation
School desegregation continues to make waves in the 2020 presidential campaign, particularly for two Democratic front-runners, former Vice President Joe Biden and Sen. Kamala Harris of California. But a dispute between the Trump administration and some civil rights advocates over the federal Fair Housing Act illustrates the extent to which education segregation cuts across policy issues, and the challenges school integration advocates face at a national level that go way beyond debate-stage arguments over “busing.”
The Trump administration is reportedly about to introduce a proposal governing discrimination claims under the Fair Housing Act, which is intended to protect people from discrimination when renting, seeking a mortgage, and seeking housing assistance. This proposal takes aim at “disparate impact,” the concept that a policy or practice can have discriminatory effects, even if it does not purposefully discriminate on the basis of race and other factors. Essentially, the upcoming proposal from the Department of Housing and Urban Development would make it more difficult for individuals and groups to sue developers, lenders, and others in the housing industry by making them first meet a five-step test for disparate impact, instead of the current three-step test.
Supporters of disparate impact claims argue that as a legal and policy standard, they can address the root causes of unfair practices that harm millions of people—and people of color in particular. In this context, such discriminatory practices hurt many individuals when they try to buy and rent homes, and can have an impact on their credit scores and a host of other factors affecting where they live and the quality of their communities. In 2015, the U.S. Supreme Court ruled that claims of disparate impact can be brought under the Fair Housing Act under certain conditions.
However, critics of the theory of disparate impact say it runs afoul of the Constitution because it can be misapplied to address outcomes that are not the result of racially discriminatory intent. Forcing a change in business practices or policies because of such outcomes without proving an intent to discriminate is problematic, this line of argument goes.