Housing Discrimination and the 14th Amendment

Despite the ratification of the Fair Housing Act in 1968, “prohibiting discrimination in housing on the basis of sex, race, and familial status,” marginalized communities continue to suffer disproportionately in the rental and home-buying market [1]. As housing development and property values escalate across the United States, minorities face severe obstructions to purchasing homes, navigating restrictive housing legislation, and obtaining insurance loans [2]. In response to these structural barriers, housing reparation programs have emerged to support historically disadvantaged communities denied the right to equitable housing. Despite debates surrounding the constitutionality of reparation programs, when analyzing the 14th Amendment from an originalist perspective, I believe that the Equal Protection Clause allows for the chartering of housing reparation programs because this clause was ratified to address the injustices of slavery, the legacy of discrimination, and the sociopolitical representation of African Americans disenfranchised and oppressed at the hands of the law.

While state and federal laws have attempted to address systemic inequities, discriminatory housing practices continue to reinforce segregation in the residential market [3]. Lawmakers and political officials have dismantled prosperous communities by manipulating public policy [4]. From New York City lawmakers displacing African Americans through eminent domain to Atlanta officials deconstructing the “oldest federally subsidized affordable housing project” to create recreational parks, African Americans have continuously been uprooted from their homes and communities during times of economic success [5]. This forced displacement incited a host of repercussions, including the erosion of African-American cultural and political identities, which can still be felt today.

Federally funded programs have also perpetuated housing discrimination. For example, following World War II, the United States aspired to transition to postwar normalcy by chartering the GI Bill, which provided veterans with loans to pay for housing and education costs to promote societal acclimation [6]. While this program aimed to eliminate housing disparities, it reinforced them in minority communities [7]. Under the GI Bill, lenders largely discriminated against African Americans as they were denied mortgage loans, segregating them from the suburbs and more affluent neighborhoods [8]. Similarly, during the Great Depression, the New Deal program created the Federal Housing Administration (FHA), which provided Americans with housing benefits and loans; however, providing African Americans with mortgage loans was deemed fiscally irresponsible [9]. According to urban planner Jonathan Rose, “the FHA was the architect of federally sponsored redlining” [10]. Redlining reverberated economic instability as minorities were packed into low-income areas with little prospect of achieving socioeconomic mobility.

The United States evidently has a long history of displacing minorities, whether it be historical instances of public policy or federal programs segregating minorities or contemporary examples of Hispanic and African American populations grappling with gentrification [11], [12]. The legacy of displacement continues to influence modern political and economic inequalities, which is evidenced by the prominent homeowning gap between African Americans and their white counterparts [13]. This ever-present homeownership and racial wealth gap has led to the creation of housing reparation programs [14]. Housing reparation programs are committed to addressing systemic disparities by targeting unjust housing practices, such as restrictive zoning laws, gentrification, and redlining, through “enforc[ing] fair lending laws” and “prevent[ing] and prosecute ongoing discrimination in the housing market” [15]. Evanston Illionis’ Local Reparations Restorative Housing Program was the first reparations program to emerge in the United States [16]. From providing up to $25,000 in cash benefits, home purchase benefits, home mortgage assistance benefits, and home improvement benefits, the Evanston City Council provides Black descendants of housing discrimination a pathway to achieving equitable homeownership [17].

Judicial Watch, a conservative foundation committed to “preserving” the rule of law and upholding “accountability in law, politics, and government,” has filed a federal lawsuit challenging the Evanston, Illinois housing reparation program on the grounds “that repaying historical wrongs against Black residents violates the U.S. Constitution” [18]. Judicial Watch argues that the 14th Amendment does not grant governments the eligibility to use “race as an eligibility requirement for participation in such programs,” and such an interpretation actively discriminates against individuals who are not African American [19]. Advocating for a color-blind interpretation of the Constitution, Judicial Watch argues that this program blatantly violates the 14th Amendment’s Equal Protection Clause [20]. Equal protection is grounded in the notion that the government must treat all individuals equally under the law [21]. Judicial Watch argues that because housing support is not extended to all individuals, it is inherently discriminatory. Whether the 14th Amendment supports the creation of housing reparation programs has been hotly contested. Understanding the literature and context of the 14th Amendment is essential to this pursuit. Section 1 of the 14th Amendment states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” [22].

The 14th Amendment attempted to alleviate racial inequality by mandating that “privileges [and] immunities” extended to U.S. citizens also applied to African Americans [23]. Although the 14th Amendment, ratified in 1866, guaranteed the security of “life, liberty, or property” and “equal protection of the laws,” redlining and housing segregation are reinforced by the U.S. legal and political system [24]. The FHA directly undermined the 14th Amendment by refusing to provide equal economic assistance to African Americans [25], [26]. The GI Bill directly opposed the 14th Amendment by supporting white veterans with “privileges or immunities” that were not extended to African Americans [27], [28]. Therefore, the 14th Amendment was blatantly disregarded as federal programs aimed at improving housing security for all disproportionately discriminated against African American communities.

The 14th Amendment’s implementation failure is evidenced by America’s current “racial wealth gap” and the persistence of housing segregation in America’s societal fabric and institutions [29]. The influence of redlining and restrictive housing practices in Evanston, Illinois, is still present today [30]. Because the 14th Amendment guarantees equality for all citizens under the law, creating housing reparation programs is constitutional because they address the legacy of unequal protection and the failure of laws to universally protect the “privileges or immunities” of U.S. citizens [31]. The 14th Amendment was undermined through systemic housing discrimination and should now be used to address contemporary racial inequalities through programs that aim to leverage housing equality. Judicial Watch’s argument that reparation programs discriminate against non-African Americans is unfounded, because they refuse to acknowledge the centuries of housing discrimination African Americans suffered [32]. Housing reparation programs reinforce the 14th Amendment’s original intent: equality at the hands of the law. Declaring housing reparation programs unconstitutional is synonymous with invalidating the Equal Protection Clause because these programs address shortcomings and historical failures in their application.

Therefore, because the 14th Amendment was violated in an attempt to perpetuate housing insecurity, housing reparation programs have emerged to rectify this implementation failure and help enforce “equal protection of the laws” by restoring justice to minorities who have suffered at the hands of discriminatory practices [33]. Because the original intent of the 14th Amendment was to address the systemic barriers African Americans faced, its ratification is a form of restorative justice. I also believe that housing programs are a form of restorative justice because they strive to uphold the principles of the 14th Amendment. Therefore, the sociopolitical context in which the 14th Amendment was ratified would support reparation programs because they aim to empower African Americans in the face of restrictive racial barriers.

Bibliography

[1] U.S. Department of Housing and Urban Development, “Housing Discrimination under the Fair Housing Act,” June 28, 2018, https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_overview.

[2] Michael DeLong, “How Racial Discrimination in Homeowners Insurance Contributes to Systemic Racism and Redlining,” Consumer Federation of America, June 17, 2022, https://consumerfed.org/how-racial-discrimination-in-homeowners-insurance-contributes-to-systemic-racism-and-redlining.

[3] Danyelle Solomon, Connor Maxwell, and Abril Castro, “Systemic Inequality: Displacement, Exclusion, and Segregation,” Center for American Progress (blog), August 7, 2019, https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/.

[4] Ibid.

[5] Ibid.

[6] The National WWII Museum, “Research Starters: The GI Bill,” October 31 2011, https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-gi-bill.

[7] Erin Blakemore, “How the GI Bill’s Promise Was Denied to a Million Black WWII Veterans,” June 27, 2019, https://www.history.com/news/gi-bill-black-wwii-veterans-benefits.

[8] Ibid.

[9] Jonathan Rose, “Redlining,” Federal Reserve History, June 2, 2023, https://www.federalreservehistory.org/essays/redlining.

[10] Ibid.

[11] Solomon, Maxwell, and Castro, “Systemic Inequality.”

[12] Blakemore, “How the GI Bill’s Promise.”

[13] Joseph Dean, “The Racial Wealth Divide And Black Homeownership: New Data Show Small Gains, Deep Fragility,” National Community Reinvestment Coalition, February 28, 2024, https://ncrc.org/the-racial-wealth-divide-and-black-homeownership-new-data-show-small-gains-deep-fragility/.

[14] Country Health Rankings & Roadmaps, “Housing Reparations,” April 13, 2022, https://www.countyhealthrankings.org/strategies-and-solutions/what-works-for-health/strategies/housing-reparations.

[15] Ibid.

[16] Maggie Birkmeyer, “The Nation’s First Municipal Reparations Program, Grounded in Black History,” June 11, 2024, https://www.mellon.org/grant-story/the-nations-first-reparations-program-grounded-in-black-history.

[17] City of Evanston, “Restorative Housing Program Participants Select Benefits,” May 2, 2022, https://www.cityofevanston.org/Home/Components/News/News/5630/17.

[18] Tatiana Venn, “Evanston’s Reparations Program Violates Equal Protection in U.S. Constitution, Lawsuit Contends,” Judicial Watch, May 30, 2024, https://www.judicialwatch.org/evanstons-reparations-program-violates-equal-protection-in-u-s-constitution-lawsuit-contends/.

[19] Ibid.

[20] Ibid.

[21] Cornell Law School, “14th Amendment,” Legal Information Institute, May 17, 2018, https://www.law.cornell.edu/constitution/amendmentxiv.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Rose, “Redlining.”

[27] Cornell Law School, “14th Amendment.”

[28] Blakemore, “How the GI Bill’s Promise.”

[29] Dean, “The Racial Wealth Divide.”

[30] Ji Ho Kim and Ethan Tang, “The City of Evanston and the Segregation of Wards,” ArcGIS StoryMaps, June 10, 2021, https://storymaps.arcgis.com/stories/45f1cd079bc5457e9f26e0f20f16659f.

[31] Cornell Law School, “14th Amendment.”

[32] Kim and Tang, “The City of Evanston.”

[33] Cornell Law School, “14th Amendment.”