RESIDENTIAL SEGREGATION

Residential segregation refers to the physical or spatial separation of groups. While residential segregation along racial and ethnic lines affects various groups, its most persistent and pervasive manifestations primarily disadvantage African Americans. segregation is both a condition of life and a process of group differentiation and distinction. As condition and process, it is closely related to invidious discrimination. The condition of segregation is primarily that of social and territorial isolation and containment. Now, as in the past, the basis of segregation is the actual or perceived incompatibility of groups due to conflicts in values, interests, behavior, and associational preferences. As a legacy of slavery, black-white racial segregation has served in significant part as a substitute for caste. Segregation continues today as a part of the ideology of the color line, implicitly defining the African American's place, role, and status.

Racial segregation in American cities and metropolitan areas is marked both by the large extent of racial separation of blacks from whites within and between given neighborhoods and by the pattern of blacks concentrated in central cities and whites dispersed throughout the suburbs. African Americans are now an urban people, with eighty percent of them residing in cities. The high degree of segregation tends to isolate African Americans—and, to a lesser degree, Hispanics and Asians—from amenities, opportunities, and resources that benefit social and economic well-being.

During the first half of this century, the "Great Migration" of the southern black population primarily to the urban North and Midwest was a significant factor in creating a national presence and elevating the so-called Negro problem into one of national dimensions. This change inspired blacks to press their unfulfilled claims not only on the nation's moral sense but also on its lawmaking institutions, including the courts. National principles, supported by constitutional law, became a principal means of attacking inequality of fact and opportunity.

Although the Supreme Court decision in brown v. board of education (1954) is more celebrated, challenges to residential segregation preceded attacks on segregation in public schools. These residential segregation cases focused on two segregation props, racially zoned municipal areas and restrictive covenants related to transferring property. In buchanan v. warley (1917), fifty years after the fourteenth amendment was ratified, the Supreme Court relied on the amendment's due process clause to invalidate a municipal ordinance that prohibited blacks from purchasing or occupying a dwelling located on any block where a majority of the dwellings were white-occupied. The Supreme Court struck down similar acts of de jure segregation in Harmon v. Taylor (1927) and in City of Richmond v. Deans (1930).

One white reaction to the Buchanan decision was the restrictive covenant, a contractual devise by which purchasers of real property assume an obligation not to dispose of the property to certain designated classes (i.e., blacks particularly and non-Caucasians generally). In 1948, as part of the black campaign against residential segregation, the Supreme Court held in shelley v. kraemer (1948) that state court enforcement of the restrictive covenants was unconstitutional state action that violated the Fourteenth Amendment's equal protection clause.

During the 1950s the federal government began to take steps toward weakening the de jure basis of racial segregation. Simultaneously, however, across the land racial homogeneity was being established by white surburbanization. This movement solidified the de facto basis of racial segregation in housing and therefore in schools as well. As historian Richard Polenberg has observed, "Suburbanization encouraged the growth of a racially segmented society, offering a classic example of how demographic trends would work at cross purposes with constitutional, political, and social change." Suburbanization, however, was not simply a matter of demographics, family settlement, and economic opportunity. Political decisions at the state, local, and federal levels not only contributed heavily to suburbanization but also to its virtually all-white nature.

The city-suburbs segregation has become a subject of special importance because arguably the exclusion of blacks from the suburbs denies them access to newer, better-quality housing, less crime-ridden neighborhoods, public schools with higher-achieving students, new and viable job opportunities, and local governments with adequate tax bases to support appropriate municipal services delivery. For many blacks, however, there are certain drawbacks to suburban integration, because it may dilute central-city black voting strength and rob central-city black communities of potential leadership and representation. Moreover, stable integration that depends on relatively low numbers of blacks to avoid neighborhood tipping, white flight, and resegregation preempts the potential for social cohesiveness and the maintenance of black identity.

Although the legacy of racism directed toward African Americans had virtually frozen in the effects of past residential discrimination and segregation by the 1960s, the modern era of open housing laws did not begin until 1968. Four significant events occurred that year within months of each other: first, on March 1, the Kerner Commission released the Report of the National Advisory Commission on Civil Disorders; second, on April 4, martin luther king, jr. , was assassinated; third, on April 11, President lyndon b. johnson signed into law Title VIII of the civil rights act of 1968 (the Fair Housing Act); and fourth, on June 17, the Supreme Court revitalized the civil rights act of 1866 when it decided jones v. alfred h. mayer co. (1968), making it clear that this statute, enforcing the thirteenth amendment, prohibited both public and private acts of racial discrimination in the sale or leasing of housing.

The Kerner Commission report recognized that the nation was rapidly moving toward two separate Americas and that within two decades, "this division could be so deep that it would be almost impossible to unite." The societies described were blacks concentrated within large central cities and whites located in the suburbs, in smaller cities, and on the periphery of large central cities. The report also recognized that community enrichment had to be an important adjunct to integration, "for no matter how ambitious or energetic the program, few Negroes now living in central cities can be quickly integrated. In the meantime, large-scale improvement in the quality of ghetto life is essential." Many commentators see the Kerner Commission report and Dr. King's assassination as precipitating passage of the Fair Housing Act, similar legislation having failed to pass in 1966 and 1967.

Title VIII, the nation's primary open housing law, contains broad prohibitions against public and private housing discrimination, including lending and brokering practices. The act prohibits discrimination on the basis of race, national origin, religion, or sex. As amended in 1988, the law now also includes as protected classes the handicapped and families with children. The act provides for independent enforcement by private lawsuits or Justice Department lawsuits, as well as enforcement through the administrative channels of the Department of Housing and Urban Development (HUD). Prior to the 1988 amendments, federal administrative enforcement power was largely ineffective, restricted to conciliation.

In the late 1960s and early 1970s, fair housing advocates focused heavily on integrating suburbs. A primary target was economic-racial exclusionary land use practices. Although exclusionary zoning was seen as the principal device for maintaining the race-and class-based segregation of inner-city residents, other local government exclusionary devices often worked in combination with zoning. Those devices included voter initiatives and referenda, as in james v. valtierra (1971), hunter v. erickson (1969), and reitman v. mulkey (1967); withdrawal from, or nonparticipation in, housing and community development programs designed to benefit the poor; tactics of delay and obstruction of private efforts to develop lowincome housing; privately caused displacement; publicly supported urban revitalization or gentrification that displaced nonwhite residents; and HUD's sale of formerly subsidized properties acquired through foreclosure, without protecting the low-income character of those properties.

In the area of exclusionary zoning on the basis of race, two significant Supreme Court equal protection cases were decided in the 1970s, Warth v. Seldin (1975) and arlington heights v. metropolitan housing development corporation (1977). In Warth a 5–4 majority held that plaintiffs, who included low-income housing developers, prospective tenants, and local tax-paying residents, all lacked standing to challenge the town's zoning ordinance that prevented the construction of low-or moderate-income housing. According to the Court, plaintiffs' allegations were insufficient to demonstrate "an actionable causal relationship between Penfield's zoning practices and petitioners' asserted injury." The Court found, among other facts, that no specific project was ready for development and likely occupancy by the poor and nonwhite plaintiffs. Moreover, the townspeople's "right to live" in an integrated community was seen by the Court as an "indirect harm" that resulted from the exclusion of others and thus violated the prudential standing rule that prohibits the assertion of rights on behalf of third parties.

The Arlington Heights opinion reaffirmed the washington v. davis (1976) holding that violation of the equal protection clause required evidence of discriminatory purpose, and held that even evidence of such a purpose would not necessarily invalidate state action; it would merely shift to defendant the burden of showing that "the same decision would have resulted even had the impermissible purpose not been considered."

Title VIII claims, on the other hand, aside from applying to private discrimination, revealed two clear advantages to claimants over equal protection claims: (1) standing was broadly defined, as even rights of third parties could be asserted (Trafficante v. Metropolitan Life Insurance Company, 1972 and Havens Realty Corporation v. Coleman, 1982), and (2) discriminatory effects would establish a claim for relief.

The protracted institutional litigation associated with the Gautreaux case—begun in 1967 and producing thirty-four opinions, including one Supreme Court opinion, hills v. gautreaux (1976)—successfully challenged the Chicago Housing Authority's site selection and tenant assignment as violations of the equal protection clause and the Fair Housing Act. The Supreme Court opinion in Gautreaux distinguished the case from milliken v. bradley (1974), which had overturned a lower court decision ordering interdistrict busing of public school children in Detroit and its suburbs as a desegregation remedy. In Gautreaux the Court granted such metropolitan relief, obligating HUD to act beyond Chicago's boundaries in effectuating desegregation of the housing authority buildings. The Court distinguished Gautreaux from Milliken by emphasizing that the federal government had violated its constitutional equal protection obligations; the interdistrict remedy was commensurate with the constitutional violation. Although Gautreaux was hailed as a doctrinal success, its remedial results were, at best, mixed. For many years no public housing was produced in Chicago or in the metropolitan areas, and many intended beneficiaries chose not to avail themselves of the limited access to housing beyond Chicago.

During the 1980s the Supreme Court diluted the effectiveness of the 1866 Civil Rights Act. In memphis v. greene (1981) the Supreme Court upheld a white neighborhood's street closure that blocked black access to the city through the white neighborhood. The Court held that this closure did not sufficiently implicate black property rights and therefore the act was not violated. Moreover, the Court concluded that the facts indicated an inconvenience to blacks, but not a badge of servitude that could violate the Thirteenth Amendment.

A year after Greene, in General Building Contractors Association v. Pennsylvania (1982), the Supreme Court found that a related provision of the 1866 act required intentional discrimination to constitute a violation. In light of General Building Contractors most lower federal courts are requiring intent as part of all fair-housing claims under the 1866 act. Thus, Title VIII now virtually stands alone as a viable basis for challenging private action that causes racially discriminatory effects. In Huntington Branch NAACP v. Town of Huntington (1988) the Supreme Court endorsed the discriminatory-effect theory for Title VIII claims in a limited per curiam affirmance.

Housing segregation is often closely related to de facto public school segregation. In the highly publicized case of United States v. Yonkers Board of Education (1987), a Second Circuit opinion affirmed the trial court's finding that the city had confined its subsidized housing to areas of concentrated nonwhite population and that this action had contributed to the segregation of the city's public schools. As a remedy the district court ordered the city to permit construction of subsidized housing in white, nonpoor residential areas and to implement a magnet-school program. When the city council refused to implement the housing plan, the court held both the city and the council members in contempt, levying substantial fines. The Supreme Court in Spallone v. United States (1990) upheld the fines against the city, but disapproved the fines against individual council members.

There is growing black skepticism and loss of faith in integration, particularly in light of the disproportionately high poverty rate of blacks and the continuously high rates of housing segregation for blacks of all socioeconomic classes. At the time of Title VIII's enactment, its sponsors thought that the statute's emphasis on antidiscrimination would lead to residential integration. Congress perceived antisegregation and antidiscrimination as complementary remedies. Often, however, in the name of integration or desegregation, racial discrimination against individuals has occurred and housing opportunities actually have been decreased. In the principal "integration maintenance" decision, United States v. Starret City Associates (1988), the Supreme Court denied certiorari, leaving intact a Second Circuit decision holding that Title VIII was violated by a racial quota limiting black access to an apartment complex in order to maintain integration. Interestingly, the NAACP supported the Justice Department's challenge to the integration maintenance scheme at issue.

Housing persists as one of black America's most intractable social issues. For most of white America, on the other hand, home ownership in a supportive neighborhood of choice represents the highest achievement in terms of status and material acquisition, while simultaneously serving to validate the incentives associated with equality of opportunity. This vision of the American dream, however, is sullied and distorted by racism and economic subjugation. Even accepting the moral imperative and the practical necessity of integrated housing for the national commonwealth, it is difficult to escape the conclusion of Derrick Bell: "Discrimination in housing, with its vices of segregated housing patterns and inadequate and overpriced housing for minorities, continues to be one of those areas where the law is unable or unwilling to keep up with conditions in the real world."

John O. Calmore
(1992)

Bibliography

Calmore, John O. 1989 To Make Wrong Right: The Necessary and Proper Aspirations of Fair Housing. Pages 77–110 in Janet Dewart, ed., The State of Black America 1989. New York: National Urban League.

Goering, John, ed. 1986 Housing Desegregation and Federal Policy. Chapel Hill: University of North Carolina Press.

Kushner, James A. 1983 Fair Housing: Discrimination in Real Estate, Community Development and Revitalization. Colorado Springs, Colo.: ShepardsMcGraw-Hill.

Schwemm, Robert 1990 Housing Discrimination Law and Litigation. New York: Clark Boardman Company, Ltd.