Racial Disparity Is Racial Discrimination
When talking about issues like affirmative action, voting rights, and housing discrimination, we often hear commentators say that racism is a thing of the past. After all, they point out, don’t we live in a post-racial society because we have a black president?
Those arguments don’t hold up in the lived experience of most people of color in this country. We know that people of color face significantly higher levels of poverty and violence than white people, and are significantly more likely to be arrested, convicted, and sent to jail or prison for engaging in the same behaviors as do the members of the white community. People of color are significantly more likely to be exposed to hazardous waste because of where they live and are less likely to have access to grocery stores that sell healthy food. From 1991 to 2011, there was actually an increase in the number of black students that attended schools where more than 90% of the students were students of color. And children of color are also more likely to attend low-performing schools than white children.
This summer, the Supreme Court will release their decision in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc. As usual, conservative commentators have raised the specter of the “post-racial” society in their analysis of how the Supreme Court should rule on a case that addresses racial segregation in housing. We thought it might be interesting to take a look at how “post-racial” some of our cities really are. Of course, these are just a few examples, but we saw similar segregation in communities across the country.
Examining several maps generated using Census Data, we can get a clear picture of what this racial segregation looks like.
In Detroit, the East 8 Mile Road provides a clear division between white and black neighborhoods:
St. Louis is one of many urban cities with deep racial segregation:
In fact, one map of Boston highlights the changes in racially segregated communities before and after Obama:
Don’t see much of a difference? Me neither. Chicago also shows little change before and after Obama:
These maps, which illustrate the segregation that still exists in our society, plainly demonstrate one way in which our country has failed to give fair and equal opportunities to groups of people in certain communities. According to The National Fair Housing Alliance 2015 Trends Report, where you live is important because it may dictate whether you have clean air, access to medical service and good education, and different job options.
In 1968, Congress passed the Fair Housing Act (FHA) with the goal of addressing the harmful impacts that residential segregation had on individuals and communities. The FHA prohibits discrimination in housing on the basis of race, color, national origin, religion and, subsequently, sex, familial status, and disability, and promotes creation of diverse communities with equal opportunities. For years, it has been debated whether, under the FHA, a policy or practice may be considered discriminatory if it has a disproportionate “adverse impact” against a group of people on the bases listed above, a concept known as disparate impact. This month, the Supreme Court will decide whether disparate impact claims are cognizable under the FHA.
In Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., the Inclusive Community Project (ICP), an organization that seeks to eliminate barriers to racial and socioeconomic integration in housing, sought to stop the Texas Department of Housing and Community Affairs (TDHCA) from disproportionately administering tax credits. ICP asserted that TDHCA disproportionately approved tax credits for low-income developments in predominately minority neighborhoods and disproportionately denies them for predominately white neighborhoods. In other words, ICP argues that TDHCA keeps low-income housing in predominately black and brown neighborhoods and out of white ones.
During oral arguments in January, Justice Antonin Scalia ignored the racism and discrimination on which this country has been built and claimed, “Racial disparity is not racial discrimination.” We must understand these issues in the context of our history. Studies on the existence and effects of “implicit bias” indicate that even people who may not intentionally discriminate on the basis of race may harbor implicit racial biases, which are activated involuntarily. These biases develop over time and are created by exposure to direct and indirect messages we receive from our culture. Research from Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity suggest implicit biases are pervasive and robust and have real world effects on behaviors. No one is exempt from having implicit bias. They affect our understanding, actions, and decisions in an unconscious manner.
Because of these implicit biases, it would undermine Congress’s goal of addressing the impacts of residential segregation if the Supreme Court rules against the Inclusive Community Project, Inc. The decision would mean that victims of discriminatory effects in housing could only find relief if the other side acted with discriminatory intent. Few housing providers discriminate in a way that we can prove is intentionally discriminatory. But implicit biases will continue to maintain a racially-segregated country unless we allow for disparate impact analysis to integrate communities and neighborhoods.
We hope that the Supreme Court rules in favor of the Inclusive Community Project, Inc. If we lose the ability to claim disparate impact under the FHA, residential segregation will continue to negatively affect the quality of life for everyone in our country, and especially for people of color.
By Taissa Morimoto, Legal Fellow, National LGBTQ Task Force