At first glance, it may not seem like fair housing laws have anything to do with parks and recreation. However, we know that where people live has a direct impact on access to public green spaces, parks and other social needs like grocery stores, private-practice healthcare facilities and reliable municipal services including police and fire/rescue.
The Fair Housing Act (FHA), first passed by the U.S. Congress in April, 1968, just days after the assassination of Dr. Martin Luther King, Jr., was drafted to help eliminate discriminatory housing policies and practices based on race, color, national origin and other factors. The FHA intended to promote our nation’s core values of equal opportunity, human dignity and just democracy for all and, indeed, the Act has helped to alleviate discrimination and integrate racially segregated neighborhoods. As a result, a larger share of residents enjoy greater access to safe parks, a clean, healthy environment, high-performing public schools, good jobs and reliable public services.
In January, the Supreme Court heard arguments in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The lawsuit pits the Inclusive Communities Project, a Texas-based nonprofit whose mission includes promoting racial and socioeconomic integration in and around Dallas, against the state Department of Housing and Community Affairs, alleging the latter party acted in a discriminatory manner in allocating housing tax credits. The court’s decision in this case, expected in July 2015, could have significant implications for NRPA’s Three Pillars: Conservation, Health and Wellness, and Social Equity. Here’s how.
Disparate Impact Versus Intentional Discrimination
The FHA prohibits practices that “otherwise make unavailable or deny” housing to any person because of race, color, national origin and other factors. In 11 federal circuit court rulings to date — all the circuit courts that have decided the issue — the FHA has been interpreted to uphold the disparate impact standard. In other words, these courts have held housing policies or actions that have an unjustified and unnecessary discriminatory effect, regardless of whether a biased outcome was intentionally sought, are prohibited under the FHA.
In its arguments before the Supreme Court, the Texas Department of Housing is urging that the FHA be interpreted to mean only purposeful discrimination would violate the act. For example, a housing authority, agency or seller would have to be intentionally discriminating against a potential client based on his or her race, color or national origin in order to be held liable under the FHA.
If the court were to find in Texas’ favor, the effect could be wide-ranging in terms of deterring equitable housing policies and, as a result, could cause severely strangled access to quality communities for low-income residents and people of color. Effect, and not intent, is the touchstone for finding a violation under the FHA, in part because clever people may easily conceal their intent and motivations, but more importantly, because thoughtlessness can be as disastrous and unfair as the perversity of a willful scheme. Throwing out the discriminatory impact standard under the FHA could also affect an array of bedrock civil rights statutes that protect against unjustified and unnecessary discriminatory impacts.
Congress recognized that a comprehensive FHA would need to target both intentional discrimination and seemingly neutral policies that have discriminatory impacts based on race, color or national origin. Each of these forms of discrimination is instrumental in perpetuating the entrenched residential segregation Congress sought to eliminate. The lower courts unanimously agree that the Act’s stated purpose to end discrimination requires a discriminatory effect standard, because an explicit intent requirement would strip the statute of its effectiveness in alleviating segregation in practice.
While public attitudes toward residential segregation have improved in important respects, racial isolation continues to persist in ways that make the disparate impact inquiry necessary. Residential isolation based on race has effects across generations that continue to limit the opportunities available to our children and grandchildren. Social science evidence confirms the determination of Congress that segregation is harmful and integration is beneficial for park access, personal and environmental health, educational achievement, access to employment, and other keys to a fulfilling life.
Improved Attitudes; Persistent Segregation
Patterns of segregation and exclusion prevent people from living in communities that they can afford, that would connect them to greater opportunity — including access to quality parks and recreation — and that are consistent with their preference for integration and diversity.
Approximately half of all high-poverty census tracts in the nation are dominated by a single racial or ethnic group. African-Americans and Latinos represent 12 percent and 16 percent of the population respectively, yet they make up much smaller percentages of the residents in higher-income census tracts. This segregation affects everyone, as it isolates people from opportunity that would enable their economic mobility and limits greater economic participation. African-Americans are more isolated than any other racial group, with 75 percent of that population nationwide residing in only 16 percent of census block groups. With only one exception — the most affluent Asians — people of color at every income level live in poorer neighborhoods than do non-Hispanic white people with comparable incomes.
Residential Segregation and Adverse Health and Environmental Effects
We know affluent communities tend to have more robust parks and recreation systems, greater access to nutritious food sources, higher-quality healthcare systems and carefully monitored environmental standards.
Grave public health impacts — including asthma, cancer, diabetes and infant mortality, as well as psychosocial phenomena like violent crime and post-traumatic stress disorder — are now widely viewed as environmentally mediated consequences of residential segregation. Racially or ethnically isolated communities are much more likely to experience environmental hazards and adverse health impacts than are diverse communities, in a way that neither housing preferences nor income and wealth gaps adequately explain. Segregated communities are significantly more likely to experience high-volume releases of toxic chemicals, to breathe high concentrations of harmful air pollutants and to live in chronically substandard, lead-painted housing. Environmental justice is the environmental arm of the civil rights movement.
The map of California found here illustrates that the same communities that are disproportionately of color and low-income are also the most burdened for pollution and vulnerability, and have the least access to green space. The figures included are determined through the CalEnviroScreen (CES) tool, which measures pollution and the resident population’s potential vulnerability to the effects of pollution.
In the communities that are the most burdened for pollution and vulnerability (the 10 percent worst score under CES), fully 89 percent of the people are of color and only 11 percent are non-Hispanic white people. Statewide, the population average is 58 percent people of color.
In the communities that are the least burdened for pollution and vulnerability (the 10 percent best CES scores), only 31 percent of the people are of color and fully 69 percent are non-Hispanic white people.
Sixty-four percent of people of color live in the most-burdened communities for pollution and vulnerability (the 50 percent worst CES scores) — only 31 percent of non-Hispanic white people live in those areas.
Only 36 percent of people of color live in the least-burdened communities for pollution and vulnerability (the 50 percent best CES scores) and fully 69 percent of non-Hispanic white people live in those areas.
Residential Segregation and Educational Impacts
Equal housing opportunity is closely linked with educational diversity and achievement. Compelling evidence demonstrates that attending integrated schools is associated with a host of positive educational and life outcomes. Low-income students of color perform better academically in diverse school settings, with improvements resulting from significant peer effects and the reduction of resource disparities. In addition, research has found that students of all racial backgrounds tend to perform better academically — as measured by grades, test scores and high school and college graduation rates — in racially integrated schools, compared to those who attend schools that are racially and socioeconomically isolated.
Residential Segregation Limits Economic Mobility
Today, segregation continues to impede access to employment and other resources, such that poverty remains entrenched and mobility out of reach to many people of color. Low-income areas are more likely to lack employment opportunities that pay above the minimum wage and offer fewer reliable public transit options. Without means to commute to higher-paying jobs, residents of segregated communities are locked into an employment landscape where opportunities for work are meager, health insurance is expensive or unavailable and options for affordable child care are severely limited.
The Discriminatory Impact Standard and Unconscious Bias
Without the disparate impact analysis under the FHA, government and other actors would not be able to pursue cleverly concealed, intentionally discriminatory acts and policies, as well as seemingly neutral policies, no matter how harsh the impact, how unjustified the action or how readily available the non-discriminatory alternatives. Even actions that are not intentional can cause harm. There’s so much social science work about unconscious bias and how so much of what we do is not driven by conscious decision. The issue of “intent” is largely irrelevant to the need to address inequality and to challenge actions that operate in a discriminatory way, whatever the motive.
The adverse consequences of throwing out the disparate impact standard would cause harm for generations to come. The FHA demands that we remain conscious of the long-term legacy and effects of historical patterns of housing segregation. The civil rights struggle — which surely involves equal access to our parks, recreation opportunities and safe public spaces — continues to support human dignity and just democracy for all, in and out of court.
Robert García is the Founding Director and Counsel of The City Project and an Assistant Professor, Community Faculty, at the Charles Drew University of Medicine and Science.