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.”
Here’s the background you need: 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.
There are two connections between this development in housing policy and education worth considering.
‘Inextricable Link Between Housing Segregation and School Segregation’
The first is the more direct one: Researchers at groups like the Urban Institute, the Century Foundation, and the Economic Policy Institute, to name just a few in the recent past, have drawn links between racially segregated neighborhood and racially segregated schools. Discrimination against black families seeking home loans, something that began nearly 100 years ago, for example, and the former practice of “redlining” districts for federal housing assistance due to their racial and ethnic characteristics have impacts that still hurt people of color and segregate neighborhoods today, according to some. Not surprisingly, they’ve been linked in the minds of powerful leaders for decades.
To the extent school district boundaries reflect legacies of housing discrimination, the thinking goes, schools in turn perpetuate the legacy of policy prejudices against them.
On a recent conference call with reporters about Trump’s proposed FHA rule, we asked representatives from several civil rights advocacy groups why such proposals matter to school desegregation. There was no hesitation on their part.
The “inextricable link between housing segregation and school segregation” means that major changes to federal housing policy inevitably impact the racial makeup of schools, said Sherrilyn Ifill, the president and director counsel of the NAACP Legal Defense and Educational Fund. She noted that the passage of the Fair Housing Act in 1968 represented a clear legal and political progression from the 1954 Brown v. Board of Education ruling that outlawed the de jure racial segregation of schools.
“Every time we see standards used under the Fair Housing Act, in this case disparate impact, weakened ... it also makes our work harder on the education integration side,” Ifill said.
And Kristen Clarke, the president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, said the impending Trump proposal “eliminates references to policies that perpetuate segregation.”
The Obama administration drew clear links between housing policy and education. As we wrote in June when considering Obama’s education legacy:
In a 2016 “Dear Colleague” letter that touted “benefits of socioeconomic and racial diversity in schools and communities, and that such diversity can help establish access points for opportunity and mobility,” the Obama Departments of Education, Transportation, and Housing and Urban Development issued a rule that communities receiving funding under the Fair Housing Act of 1968 must work to “reduce barriers to fair housing” and against racial segregation in neighborhoods. The Trump administration rolled back the deadline for communities to meet this rule.
But just how much impact have federal housing policies, as well as school desegregation plans that have included transporting students to schools, affected how segregated neighborhoods are?
Neal McCluskey, the director of the Center for Educational Freedom at the Cato Institute, a libertarian think tank, says discriminatory federal housing policies that lasted through the 1960s should trouble us today. But he also said that in many cases, self-segregation in neighborhoods and schools is due to personal choices regardless of government policies.
“It’s right to be very concerned about discriminatory policies,” McCluskey said. “But sometimes people overstate the extent to which people living in separated housing is the function of policies and not of choices. ... What we can’t say for certain is what mix of housing we would have gotten absent those policies. The research on people’s preferences in what their neighborhood looks like is that we probably would have had a lot of housing segregation regardless of those policies.”
The Broad Application of ‘Disparate Impact’
Second, if this argument about the Fair Housing Act sounds familiar, that’s because disparate impact has been at the center of a major tug-of-war in education policy as well.
Perhaps the most prominent example of this is the Obama administration’s 2014 guidance intended to address racial disparities in how school discipline is applied. It relied on the idea that schools’ discipline policies often disproportionately impacted students of color, irrespective of the racial prejudices of individual educators.
This argument touched off passionate disagreements in the K-12 world that continue to this day. As they did with the impending FHA rule discussed above, civil rights advocates praised the 2014 guidance. But others, including educators, believed the guidance may have intruded too much on decisions better left to teachers, administrators, and school districts.
To virtually no one’s surprise, the Trump administration repealed this discipline guidance last year. When Rep. Bobby Scott, D-Va., who in 2018 was the top Democrat on the House education committee, responded to this decision, he explicitly criticized the “policies and programs that disproportionately impact students of color, regardless of their intent.”
Absent new federal laws addressing segregation one way or the other in education (and other policy areas), both backers and critics are left to tussle over rules and guidance. Of course, these can shift dramatically from one presidential administration to another.
One final point. Biden and Harris in two debates have sparred over the extent to which each has or has not supported federally mandated school desegregation such as busing. What’s gotten less attention during the campaign and from candidates is a systemic approach to segregation and discrimination that ties education to housing, transportation, and other policy areas.
Former Obama Secretary of Housing and Urban Development Julián Castro, a relatively long-shot candidate for president, called for “affirmatively furthering fair housing, implementing zoning reform, and expanding affordable housing in high opportunity areas” in his education plan. But even if it stood a shot of getting much attention before the first round of Democratic presidential debates, it’s been overshadowed by the Biden-Harris feud.
Photo: An aerial photograph shows a section of Levittown, N.Y., in 1948, shortly after construction of the mass-produced suburb was completed on Long Island farmland, 25 miles east of Manhattan in New York City. Levittown had at first an official and then an unofficial bias against black families. (Levittown Public Library/AP-File)