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"Some Lessons from Brown for the Fair Housing Movement,"

by Philip Tegeler The trends are disturbing: 50 years after Brown v. Board of Education, schools are again becoming increasingly segregated by race and income. A 2004 study by the Harvard Civil Rights Project (Gary Orfield and Chungmei Lee, “Brown at 50: King’s Dream or Plessy’s Nightmare?”) found school segregation in 2001 at its highest level since 1968.July/August 2004 issue of Poverty & Race

The trends are disturbing: 50 years after Brown v. Board of Education, schools are again becoming increasingly segregated by race and income. A 2004 study by the Harvard Civil Rights Project (Gary Orfield and Chungmei Lee, “Brown at 50: King’s Dream or Plessy’s Nightmare?”) found school segregation in 2001 at its highest level since 1968. This trend is partly attributable to the abandonment of desegregation orders in many Southern districts, but it is also a function of continuing residential segregation in the Northeast and Midwest. Since the Supreme Court, in the mid-1970s, backed away from the problem of metropolitan-wide segregation in Northern schools, residential poverty concentration has become increasingly severe, peaking in the 1980s, and now continuing to consolidate and spread across wider areas, even as it declines in the most poverty-concentrated census tracts (see the May 2003 Urban Institute report, “Concentrated Poverty: A Change in Course,” by G. Thomas Kingsley and Kathryn Pettit). In spite of this trend, federal and state housing programs continue to foster dual housing markets in separate school systems, one for the suburban middle class and one for the urban poor.

As researchers, we strive to understand the underlying causes and consequences of racial segregation and poverty concentration. As advocates, we have developed strategies for attacking the systems that continue to promote segregation. As proponents of progressive fair housing policies, we know that there are government interventions that can work to reverse these trends. In this anniversary year, part of the Brown spotlight reflects on the fair housing movement: What more can we do? Some answers can be found within the Brown decision itself:

Brown as History Lesson

The legal system attacked in Brown v. Board of Education was one of “de jure” (legally mandated) school segregation throughout the South, beginning after Reconstruction and continuing to at least 1954. Brown should also remind us of the state-sponsored history of housing segregation in this country. Both before and after Brown, this system of state segregation was replicated in federal, state and local housing policy. (For new research on the historical roots of segregation, see “Housing and School Segregation: Government Culpability, Government Remedies,” on PRRAC’s website – www.prrac.org).

The history of state-sponsored housing segregation is not as well known as the history of Brown. But it was well understood in 1968 by Dr. King as he marched in Chicago, and it was recognized several months later by the Kerner Commission and the drafters of the Fair Housing Act, who understood that the ghetto was never a naturally occurring phenomenon: It was state-created and state-supported, and perpetuated by federal and state policy. This history is not taught in our schools today, and it is not routinely reflected in the media. But the historical perspective is necessary to justify remedial steps and to mobilize public support for desegregation (see “Teaching About Inequality, Race, and Property,” by PRRAC Board member Florence Roisman, at 46 St. Louis Law Journal 665 [Summer 2002]).

Brown and the Problem of Intent

We need to come to terms with the reasons for Brown’s failure to achieve its own aspirations, and the implications for federal housing and civil rights policy. One important failure is the legal system’s insistence on a standard of “intent” to define constitutional liability for structural racism. In the first two decades after Brown, as the cases moved from the South to equally segregated Northern cities lacking a written legal code of segregation, some courts were open to finding “de facto” segregation unconstitutional, even where there was no direct evidence of intent to create segregation. These courts reasoned that the harms of segregation were the same, regardless of the cause, and that, as the overseer of the system of student assignment, the state bore responsibility.

But the Supreme Court put an end to this logical extension of Brown in decisions in 1972 (Keyes v. School District #1) and 1976 (Washington v. Davis), which ultimately required proof of discriminatory intent by public officials before a constitutional violation could be found. This standard led to increasingly expensive and sometimes futile searches for the “smoking gun” in school districting, housing and zoning decisions spanning decades. But the result was the same whether or not the smoking gun could be found: In the absence of carefully planned school districting and assignment decisions, segregated neighborhoods create segregated schools.

In contrast to this increasingly strict standard of proof in constitutional cases, federal civil rights statutes (such as the Fair Housing Act) adopted during the first two decades after Brown reflected the sense that discriminatory “impact” could be a basis for liability in housing, employment and certain government programs, and this continues to be the legal standard today. But this standard is increasingly threatened by conservative courts, which have already stripped Title VI of much of its enforcement power (see the Supreme Court’s 2000 Alexander v. Sandoval decision), and by a federal administration that is increasingly reluctant to prosecute discriminatory impact claims in housing. In light of the history of enforcement of the Brown decision, it is crucial that fair housing law continue to permit a finding of liability where facially neutral housing policies have the effect of perpetuating segregation.

Brown and Jurisdictional Fragmentation

Brown’s ultimate demise in the North was not just about the Supreme Court’s requirement of a finding of “intentional” segregation – it was about the Court’s reluctance to extend liability to “independent” suburban jurisdictions outside the segregated central city. This problem is well known to fair housing advocates, and its legal origins can be traced in part to the 1974 decision of the Supreme Court in the Detroit schools case (Milliken v. Bradley): Unless a finding of discrimination could be made against each suburban school district participating in a segregated regional system of education, those suburbs could not be ordered to desegregate. This decision had the effect of privileging suburban white flight and set the bar for meaningful school desegregation so high that it has rarely been hurdled since.

Although the Supreme Court, in Chicago’s Gautreaux case, ultimately stopped short of applying this principle directly to housing desegregation litigation, jurisdictional fragmentation remains a key barrier to meaningful fair housing enforcement, and the delegation of land use, zoning and public housing administration to small local jurisdictions is one of the basic building blocks of segregation in this country. As we move forward from this Brown anniversary year, we must find housing solutions that successfully overcome (or transcend) these jurisdictional barriers.

Brown and the Duty to Affirmatively Further Fair Housing

The history of Brown’s implementation in the South underscores the need to affirmatively dismantle segregation, not simply to remove discriminatory practices. In the initial decade after Brown, when de jure segregation was eliminated throughout the South, little true desegregation was achieved. In many areas, “freedom of choice” plans were adopted that replicated segregation almost perfectly. It was not until passage of the Civil Rights Act of 1964 and rulings in the Green and Swann cases in 1968 and 1971 that the courts recognized the need to eliminate segregation “root and branch” and take sweeping remedial steps to “disestablish” segregation and affirmatively promote integration using the full remedial power of the federal courts.

The Fair Housing Act’s mandate that federal and state agencies “affirmatively further fair housing” is a recognition of this reality: that the structures of segregation are deeply rooted and can only be eliminated through affirmative government measures, not simply policies of non-discrimination. The scope of the “affirmatively furthering” mandate is now being tested in Baltimore’s public housing desegregation case; in challenges to state administration of the Low Income Housing Tax Credit Program in New Jersey and Connecticut; and in public housing demolition and relocation cases in Chicago and elsewhere. As the school desegregation cases have shown us, without this additional “affirmative” duty to promote integration, it is unlikely that the effects of decades of segregative government policies can be undone.

Brown and International Law

It has often been observed that the Brown decision had a great deal to do with the Cold War and with America’s need to appear true to its own announced principles of liberty and equality in its global moral and strategic competition with the Soviet Union. (An early proponent of this view was James Baldwin, in The Fire Next Time.) Today, international human rights standards continue to be a powerful potential tool to influence United States policy, even though U.S. courts and policymakers resist the notion of being bound by outside legal standards, and the Senate routinely places unnecessary “reservations” on international human rights accords that come before it.

Several standards adopted by the U.N. (and ratified, in part, by the U.S.) speak directly to American housing and school segregation. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) holds that its signing countries “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” CERD further requires signing countries to “. . . take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” In testimony last fall before the Inter-American Commission on Human Rights, former Under Secretary and General Counsel of the U.S. Department of Education Judith Winston (a former PRRAC Board member) testified that:

“Today racial discrimination in the public schools is a vestige of the legally sanctioned racial apartheid that existed prior to the landmark Supreme Court decision in 1954 – Brown v. Board of Education. The existence and continuation of racial segregation in our schools is also a stark indication that the deeply ingrained negative racial stereotypes and racial prejudices that were at the core of 19th and 20th century racism affect the treatment and quality of education students of color receive in 21st century U.S. public schools. This modern day discrimination, however, is not often exhibited as intentional racial animus but is more deeply hidden in institutional racism that defies the traditional legally enforceable means of eradication.”

Fair housing advocates need to take advantage of these international forums in a more proactive way in the coming years, to focus international attention on state-sponsored segregation here in the U.S.

Brown as a Faith-Based Initiative

In his new book, A Stone of Hope: Prophetic Religion and the Death of Jim Crow, David Chappell reminds us of the religious foundations of Brown and the ways in which religion sustained and helped to define the Civil Rights Movement in the 1960s. Similarly, one of the greatest sources of hope for today’s fair housing movement comes from the new, ecumenical coalitions that are re-forming around regional equity, smart growth and educational equity issues, bringing together inner-city and suburban congregations effectively for perhaps the first time since the 1970s. Some of the leading examples of these coalitions have joined together in a network sponsored by the Chicago-based Gamaliel Foundation (see www. gamaliel.org).

Conclusion

The fair housing movement stands somewhat outside of the spotlight during this anniversary year of the Brown decision. And we stand here knowing that it is largely the disconnect between housing and school policy, and our collective failure to dismantle housing segregation, that have placed our society in such jeopardy. As we move forward in our housing work, we would do well to always keep schools in mind and remember these lessons of Brown.

Philip Tegeler is PRRAC's Executive Director. ptegeler@prrac.org
 

Notes:

This essay was originally published in a special Brown v. Board of Education issue of The NIMBY Report, a publication of the National Law Income Housing Coalition in collaboration with the Building Better Communities Network (see www.nlihc.org).

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