Preventing Future Harm Requires Addressing Past Harm: The Civil Rights Act Calls on us to Pass Federal Policies Remedying Past Housing Discrimination

For seven long weeks during the late summer days of 2022, 150,000 residents of Jackson, Mississippi’s capital city, did not have access to clean water.¹ The cause: a mix of increased flooding due to climate change and aging water infrastructure that could not withstand the blows of intensifying storms.² The precarity of Jackson’s water infrastructure, however, is unsurprising in the United States. Over 80% of Jackson’s population is Black, and predominantly Black neighborhoods are most likely out of American neighborhoods to be in areas with the highest projected flooding damages from climate change, the highest projected increases in extreme temperature-related deaths, and the highest projected increases in childhood asthma diagnoses as fossil-fuel burning continues.^3,4 The increased likelihood of Black Americans experiencing catastrophic climate impacts is due in large part to historical housing discrimination, which has led to long-lasting segregation and underinvestment in infrastructure.⁵ Segregation led to underinvestment because Black Americans were legally segregated into areas that were assigned lower property value through Jim Crow laws, red-lining, zoning laws, and explicit exclusion from the subsidies and houses available through the GI Bill of 1944 and Housing Act of 1949.⁶ Being forced into areas with lower property values institutionalized underinvestment in infrastructure both through lower property taxes and lower federal and state grants and spending. However, the US operates under the assumption that the problem has been legislatively remedied because the Civil Rights Act of 1968 outlawed discriminatory practices in real estate. But, as is the case with much of the United State’s rights-enhancing legislation, lawmakers’ eyes lay entirely on the future; in refusing to account for the harm that was already done through housing segregation, the segregation has remained, and it will continue to cause harm until it is appropriately dealt with. Especially considering the future impacts that the impending climate crisis will have on people as a function of the infrastructure they live within, it is known that the ill effects of housing discrimination will continue into the distant future if not addressed. However, lawmakers intended for the Civil Rights Act of 1968 (the Fair Housing Act) to stop the ill effects of housing discrimination; not just to stop the act of outward discrimination itself, indicating that legislative intentions and outcomes are misaligned. In order to uphold the legislative intent of civil rights lawmakers, the United States requires urgent reparative housing justice policies that accord the aspirations of the Civil Rights Act with societal outcomes.

The directive text of the Fair Housing Act (FHA), an act that exists within the Civil Rights Act of 1968, focuses on preventing future intentional discrimination, which has led to continued harm from inaction on segregation that remains from periods of outward housing discrimination. The FHA makes it illegal to “refuse to sell or rent…a dwelling to any person because of race…” .⁷ All directions after this phrase follow suit in utilizing language that only refers to future harm, such as that “it shall be illegal… to represent to any person because of race… that any dwelling is not available…when such dwelling is in fact so available.”⁸ While of course, the Civil Rights Act or any US legislation, could not act as an Ex Post Facto law; a law that criminalizes actions taken before it was passed, it could have called on agencies to investigate and remedy the housing discrimination that had already occurred. From 1900 to 1970, segregation between Black and white populations shifted steadily from the macro (state) level to the micro (municipality) level, and segregation on average nationally reached its peak in 1970.⁹ Over 50% of the metropolitan areas that were considered hypersegregated in 1970 were still hypersegregated in 2010, and a third of Black metropolitan residents still lived in hypersegregated areas.¹⁰ Clear continuity exists between areas segregated de jure pre-FHA and areas that remain segregated today. Not addressing segregation led the practice to continue, and the governmental underinvestment that comes with living in a segregated area has continued as well, leading to current and future housing discrimination-based harm.

The legislative intention of the Civil Rights Act of 1968 however, was to end the suffering caused by housing discrimination. To make intentions congruous with outcomes, we must address the continued impacts of past discrimination. Sec. 801, the first sentence of the FHA states, “It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”¹¹ While the directive policies attempt to achieve this goal through future-facing policies, it is clear that the intention of the policy was the outcome of fair housing for Americans, not just an end to active discrimination in real estate. Upon signing the Civil Rights Act of 1968 into law, Lyndon B. Johnson stated that the FHA “proclaims that fair housing for all—all human beings who live in this country—is now a part of the American way of life.” It is clear that Johnson believes that the act of signing the FHA is synonymous with immediately making fair housing a reality.¹² But what is fair housing in Lyndon B. Johnson’s eyes? In 1965, at the signing of the Housing and Urban Development Act, he defined a vision of fair housing in which “every family in America lives in a home of dignity and a neighborhood of pride, a community of opportunity and a city of promise and hope.”¹³ Through tying the right to housing to the opportunities that housing allows people, Johnson made clear that the ill effects of segregated housing are what the government was attempting to address. Specifically, the continued disproportionate risk that predominantly Black areas face when it comes to the future threat of climate change is in direct opposition to this intention that Americans not be hindered or harmed by the racial demography of the areas they live.

While some may highlight that the U.S. government is not legally obligated to remedy a divergence between legislative intent and outcome, it is, however, obligated by precedent and prospect to remedy this divergence. Clear evidence exists for this lack of legal responsibility in the precedent set by Washington v. Davis (1978), as the case separated legal intention from outcome. Washington v. Davis addressed whether a recruiting policy that was not discriminatory in intention but was discriminatory in its outcome, violating the Equal Rights Act. The Court ruled 7-2 that the recruiting policy was not illegal, essentially arguing that because the intention of the policy was nondiscriminatory, its outcomes were not of interest to the courts.¹⁴ This ruling leads to an understanding that the current inequitable impacts of climate change and environmental degradation are not illegal simply because their outcomes are not consistent with the FHA’s intentions, but that does not mean reparative policy is not legally prudent. The fabric of our legal system relies on constituents believing the policies legislators pass will have the intended effect. Allowing the rift between legislative intent and outcome to remain, or in the case of climate catastrophe, widen, degrades trust between constituents and legislators. To trust the government is to heed the guidance of expert institutions, to follow the law, to participate in public affairs. After all, trust in the government is the bedrock on which a democracy relies. To maintain democracy, it is imperative that lawmakers work towards congruity between legislative intent and outcomes. Additionally, American legal precedent points towards amending our laws so as to mirror outcomes with intentions. The Civil Rights Act itself has already been amended several times to become more effective in creating intended outcomes. Remedying the harm that American citizens face daily due to continued housing discrimination and subsequent underinvestment is necessary on moral grounds alone; it also happens to be necessary in order for American lawmaking institutions to maintain their legitimacy.

The intent of the Fair Housing Act was to end the suffering associated with discriminatory housing practices, but because of its forward-facing directives, the FHA failed to address past housing discrimination, which continues to bring discriminatory suffering today. Looking at the disparate future impacts climate change will have on communities as a function of the infrastructure they live within, these reparative policies are more necessary than ever. So what might reparative policies look like that would remedy the past harm through segregation that the FHA did not? First, these reparative policies could follow suit with past additions to the Civil Rights Act and be added through an amendment. The substance of this amendment could include programs such as interest-free home loans for families generationally affected by housing discrimination, and race-conscious federal investments in updating climate-resilient infrastructure. Additionally, communities at the frontline of continued harm due to past housing discrimination are uniquely suited to suggest measures that would be most impactful in addressing the housing disadvantages they have generationally experienced. While it is true that policies such as these would be no easy feats to accomplish and might require substantial spending and administrative organizing, the road towards realizing the intentions of the Equal Rights Act is one that merits travel at any cost.

References

1. Flavelle, Christopher, Rick Rojas, Jim Tankersley, and Jack Healy. 2022. “Mississippi Crisis Highlights Climate Threat to Drinking Water Nationwide.” The New York Times, September 1, 2022, sec. U.S. https://www.nytimes.com/2022/09/01/us/mississippi-water-climate-change.html. ↩

2. Eliza Fawcett. n.d. “Water Pressure Is Restored in Jackson, Miss. - The New York Times.” Accessed October 16, 2022. https://www.nytimes.com/2022/09/06/us/jackson-mississippi-water-pressure.html. ↩

3. Press, The Associated. 2022. “A Boil-Water Notice Has Been Lifted in Jackson, Miss., after Nearly 7 Weeks.” NPR, September 15, 2022, sec. National. https://www.npr.org/2022/09/15/1123264927/jackson-miss-boil-water-lifted. ↩

4. EPA. 2021 “Findings on Disproportionate Risks of Climate Change to Black and African American Individuals.” https://www.epa.gov/system/files/documents/2021-11/factsheet_black-and-african-american.pdf. ↩

5. Menika Dirkson. n.d. “Perspective | The Legacy of Decades of Housing Discrimination Still Plagues the U.S.” Washington Post. Accessed October 16, 2022. https://www.washingtonpost.com/outlook/2022/06/21/legacy-decades-housing-discrimination-still-plagues-us/. ↩

6. History. “A Look Back at Segregation in the United States.” In HISTORY. Accessed October 30, 2022. https://www.history.com/topics/black-history/segregation-united-states.

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7. 42 U.S.C. 2015. Fair Housing Act. Sec. 804 https://www.justice.gov/crt/fair-housing-act-2. ↩

8. 42 U.S.C. 2015. Fair Housing Act. Sec. 804 https://www.justice.gov/crt/fair-housing-act-2. ↩

9. Massey, Douglas S., and Zoltan L. Hajnal. “The Changing Geographic Structure of Black-White Segregation in the United States.” Social Science Quarterly 76, no. 3 (1995): 527–42. http://www.jstor.org/stable/44072648. ↩

10. Massey, D.S., Tannen, J. A Research Note on Trends in Black Hypersegregation. Demography 52, 1025–1034 (2015). https://doi.org/10.1007/s13524-015-0381-6 ↩

11. 42 U.S.C. 2015. Fair Housing Act. Sec. 801 https://www.justice.gov/crt/fair-housing-act-2. ↩

12. Lyndon B. Johnson. April 11, 1968. Remarks Upon Signing the Civil Rights Act. | The American Presidency Project. Accessed October 16, 2022. https://www.presidency.ucsb.edu/documents/remarks-upon-signing-the-civil-rights-act. ↩

13. Lyndon B. Johnson. August 10, 1965. Remarks at the Signing of the Housing and Urban Development Act. | The American Presidency Project. https://www.presidency.ucsb.edu/documents/remarks-the-signing-the-housing-and-urban-development-act. ↩

14. "Washington v. Davis." Oyez. Accessed October 16, 2022. https://www.oyez.org/cases/1975/74-1492. ↩