Trading Places or Changing Spaces? At the Crossroads of Defining and Redressing Segregation

Segregation rates have remained stagnant in many regions of the United States since the passage of the federal Fair Housing Act (FHA) in 1968 and experts expect them to increase in large metropolitan areas. Consequently, poor Blacks will be subjected to the extreme deprivation of group life chances that characterize racially and economically segregated environments. The global pandemic has only further exacerbated these dire circumstances. While severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) may not discriminate, housing, healthcare, criminal, and economic policies have, rendering impoverished communities of color particularly vulnerable to the ravages of the coronavirus disease 2019 (COVID-19). The FHA recognizes two theories of discriminatory-effect claims: (1) disparate impact and (2) segregative effect. The U.S. Supreme Court recently upheld each in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., but lower courts have interpreted the majority opinion to erect unprecedented requirements for plaintiffs seeking to vindicate their fair housing rights. Under President Biden, the U.S. Department of Housing and Urban Development proposed new regulations to buttress these discriminatory-effect theories in contrast to the curtailing rules of the Trump administration. For over fifty years, fair housing advocates have debated whether remediation should entail moving racial minorities to affluent, white neighborhoods or enriching disinvested communities of color. The Court’s ruling left the decision to public officials and housing providers, but it offered no clear formula for maneuvering around the prospects of discriminatory-effect liabilities. This Article endeavors to fill in that blank by exposing the faulty ideological underpinnings and constricted definitions that inhibit the FHA’s segregative-effect theory from guiding a constructive dialogue on these policy choices. Specifically, its colorblind framework disconnects race from its operation as a mechanism for distributing access to vital resources. Current doctrine solely looks to racial demographics to identify and redress segregation. As such, the rerouting of resources to majority-minority communities inherently raises the specter of perpetuating or exacerbating segregation in violation of the FHA. This Article contends that a segregative-effect analysis should co-extensively assess this data set against the region’s geography of opportunity. The proposed approach comports with the recognition of “lost housing opportunity” damages in fair housing jurisprudence and reflects insights from Empirical Methods and Critical Race Theory while offering a formula for redressing the racialized inequities embedded in both segregation and gentrification