U.S. Rep. Wm. Lacy Clay

April is Fair Housing Month, when the nation celebrates the Fair Housing Act which was passed in the wake of Dr. Martin Luther King Jr.’s assassination 51 years ago. At a time of increasing racial division, a rise in hate crimes, and persistent disparities in the housing market, we must recommit to the promise of the Fair Housing Act to prevent discrimination and open housing opportunities for all.

This is precisely why the Trump administration’s attack on a critical fair housing enforcement tool is so problematic. The Department of Housing and Urban Development has initiated steps to gut the “disparate impact” rule under the Fair Housing Act.

This protection says that banks, landlords, and other housing providers should choose policies that apply fairly to all persons. Some policies that appear neutral can unfairly exclude certain groups of people in practice. We need to be able to detect and prevent harmful, inequitable, and unjustified policies to ensure everyone is treated fairly.

This is not a new concept. Use of disparate impact to challenge disparities in housing is almost as old as the Fair Housing Act itself.  And it had Republican beginnings. The Nixon administration was the first to employ the tool, under the leadership of George Romney as secretary of Housing and Urban Development and John Mitchell as attorney general.  

The first Nixon lawsuit to rely on disparate impact arose in my Congressional district, Missouri’s 1st District. A non-profit interfaith group sought to build multi-family rental housing in North St. Louis County in 1969. The idea was to create new housing opportunities for low-income residents of St. Louis. When the surrounding white community realized the development would be racially integrated, it took steps to block the development.  

The case resulted in a seminal 1974 ruling by the U.S. Court of Appeals for the Eighth Circuit, United States v. City of Black Jack, that the Fair Housing Act encompassed discriminatory impact as well as intent. Over the decades, the ruling was followed by 10 other federal appeals courts. Four years ago, the U.S. Supreme Court finally added its imprimatur in Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project. Justice Anthony Kennedy authored the opinion upholding this critical tool, writing that the Fair Housing Act has a “continuing role in moving the Nation toward a more integrated society.” It’s also important to recall that Shelley v. Kramer, a landmark U.S. Supreme Court decision which struck down restrictive property covenants, also originated in St. Louis.

In almost five decades of use, disparate impact has protected families with children from occupancy limits in apartment rentals. It has protected homeowners of color from unfair application of lending criteria. It has protected victims for domestic violence from being evicted for reporting abusers to the police. 

These practices ultimately interfere with the choice of individuals to live where they want. That choice should be unfettered.

When Americans are denied equal access to housing, it reduces the availability of good jobs, quality education, safe streets, and a clean and healthy environment, all of which are central to the American Dream. As our nation becomes more diverse in every way, the Fair Housing Act helps to foster stronger and more inclusive communities, which are critical to our collective success and prosperity.     

Sadly, we have learned that the Trump administration’s plan to undermine disparate impact in housing is part of a broader attack on this critical enforcement tool. Racial disparities in education, employment, healthcare, transportation, the environment, and policing will be more difficult to challenge if this tool is weakened. It is important to first stem the damage to fair housing enforcement, because other areas of civil rights are next in this administration’s sights.

In addition to Black Jack, my district is also home to Ferguson. After the tragic killing of Michael Brown on the streets of Ferguson almost five years ago, our nation focused a much-needed lens on the myriad racial disparities experienced by communities of color everywhere. As we prepare to commemorate Dr. King, his ultimate sacrifice, and the civil rights law passed in his honor, we have much work to do to address the systemic discrimination that still holds so many back.

This is absolutely the last moment in time for the federal government to eliminate longstanding tools that aid us in that effort. 

U.S. Rep. Wm. Lacy Clay (D-Missouri) is chairman of the House Financial Services Subcommittee on Housing, Community Development & Insurance.

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