In June, the Supreme Court rescued the Fair Housing Act from a claim that it prohibited only overt discrimination—where a government body announces that it is enacting a housing policy for racially discriminatory reasons. Instead, Justice Anthony Kennedy’s opinion concluded that housing policies that have the effect of reinforcing segregation must be avoided, regardless of policymakers’ provable intent, unless an agency enacting such a policy can show that there was no reasonable alternative to segregation as a way to accomplish legitimate housing objectives.1

These days, when few public officials are so incautious as to announce they are racists, a different Court decision would have hamstrung efforts to desegregate housing nationwide.

Justice Kennedy based his ruling, in part, on a brief submitted by “Housing Scholars” organized by the Haas Institute and the Economic Policy Institute.2 The brief recounted the long history of government sponsorship of racial segregation that had established the nation’s racial housing patterns. The Housing Scholars argued that, because of entrenched patterns attributable to government policy, seemingly race-neutral policies could have the effect of reinforcing the segregation that government had helped put in place.

Now, a federal appeals court based in California, again relying in part on the Housing Scholars brief, has developed Justice Kennedy’s theory further. The case arose from the refusal of the City of Yuma, Arizona to permit construction of moderate-cost single family homes adjacent to a neighborhood where homes were more expensive.3 Although opponents of the development never said openly that their objection was based on race, they attacked the proposal using code words alleging that the development would bring crime into the neighborhood, that some of the homes might be purchased by single-parent families, and that “unattended children would roam the streets.” (The appeals court observed that where whites are involved, it is called “letting children play in the neighborhood.”) The court said that a reasonable jury could interpret such objections as racially motivated.

It was generally understood in Yuma, but never said, that were the development to proceed, its homes would be purchased mostly by Hispanic families, whereas the adjacent, higher-cost, neighborhood was inhabited mostly by whites. Allowing Yuma’s prohibition to stand could result in Hispanic families being restricted only to neighborhoods where Hispanics were already a large majority—perpetuating segregation.

Yuma offered to find a site elsewhere in the city where the developer could construct comparable housing. But the appeals court dismissed such an offer, saying that “[t]ruly comparable housing… is not simply a question of price and model, but also of the factors that determine the desirability of particular locations—factors such as similarly or better performing schools, comparable infrastructure, convenience of public transportation, availability of amenities such as public parks and community athletic facilities, access to grocery or drug stores, as well as equal or lower crime levels.”

Citing the Housing Scholars brief, the appeals court noted that “[g]overnment policy, which promised not to change a neighborhood’s composition when constructing affordable housing, exacerbated the stark segregation in America’s cities.” The court also observed that “housing segregation both perpetuates and reflects this country’s basic problems regarding race relations: educational disparities, police-community relations, crime levels, wealth inequality, and even access to basic needs such as clean water and clean air. In this country, the neighborhood in which a person is born or lives will still far too often determine his or her opportunity for success. As the Supreme Court recognized [last June], the Fair Housing Act must play a ‘continuing role in moving the Nation toward a more integrated society’ and a more just one.”

Evidence for the wisdom of these insights is omnipresent, and continues to accumulate. Were African Americans in Flint, Michigan not residentially segregated, denying them “clean water” would have been inconceivable. If the segregation of West Baltimore’s citizens did not deny them “convenience of public transportation,” they would have access to metropolitan area jobs and their economic circumstances would improve.4 Many scholars have recently documented that “the neighborhood in which a person is born or lives will still far too often determine his or her opportunity for success.”5 Poor “police-community relations” (in the court’s euphemism), resulting in deaths of African Americans in Ferguson, Baltimore, Cleveland, and elsewhere, could only have taken place in segregated neighborhoods. When low-income minority children can attend truly integrated schools, their achievement rises, not because black children need to sit next to white children to succeed, but because integrated schools are not overwhelmed with children’s social and economic problems and can instead focus on instruction. The absence of supermarkets in segregated neighborhoods contributes to poor diets, reduced cognitive ability in children, higher health care costs, and shorter lifespans.

Housing segregation undergirds many of the nation’s seemingly intractable racial inequities. Federal courts may be starting to notice.

1. Texas Department of Housing and Community Affairs et al. v. Inclusive Communities Project, Inc., et al. 2015. No. 13–1371. Supreme Court of the United States. June 25. http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

2. Brief of Housing Scholars as Amici Curiae Supporting Respondent, 2014. Texas Department of Housing and Community Affairs, et al., Petitioners, v. The Inclusive Communities Project, Inc., Respondent., No. 13-1371, United States Supreme Court. Submitted December 23. http://diversity.berkeley.edu/sites/default/files/Amicus Brief EPI and Haas Institute Texas Housing Dec 2014.pdf

3. Avenue 6E Investments v. City of Yuma. 2016. No. 13-16159. United States Court of Appeals for the Ninth Circuit. March 25. http://www.epi.org/files/2016/Court-FHA-2016-Yuma.pdf

4. See, for example, a civil rights complaint recently filed by the NAACP Legal Defense Fund: Baltimore Regional Initiative Developing Genuine Equality, Inc., and Earl Andrews, Individually, Complainants, vs. State of Maryland, Maryland Department of Transportation, Maryland Transit Administration, and Maryland State Highway Administration, Respondents. Complaint Pursuant To Title Vi of The Civil Rights Act of 1964. U.S. Department of Transportation, Departmental Office of Civil Rights; Federal Highway Administration Office of Civil Rights. http://www.naacpldf.org/files/case_issue/Baltimore%20-Red-Line-Complaint.pdf

5. Raj Chetty, Nathaniel Hendren, and Lawrence F. Katz. 2015. “The Effects of Exposure to Better Neighborhoods on Children.” Working Paper 21156. National Bureau of Economic Research.