October 30, 2013

This nation’s commitment to fair housing and integrated living patterns is in peril in a critical case reviewed by the United States Supreme Court this term.  The Civil Rights Act of 1968, known as the Fair Housing Act, was enacted only after the assassination of Martin Luther King Jr., and remains our nation’s most important mechanism for promoting equal housing opportunity and disestablishing patterns of residential segregation. The Act prohibits housing discrimination and charges all governmental units with the duty to “affirmatively further fair housing.”

The Haas Institute and the Warren Institute at UC Berkeley School of Law filed an amicus (friend-of-the-court) brief of 61 Housing Scholars in the U.S. Supreme Court on Monday in the case of Mount Holly v. Mount Holly Gardens Citizens in Action, Inc. The Township of Mount Holly planned to demolish homes and redevelop a neighborhood that is predominantly African American and Latino, displacing homeowners who lived there for many years.  Residents of Mount Holly filed suit arguing that the redevelopment plan does not adequately provide alternative, integrated housing options within the Township in violation of the Fair Housing Act. 

The Mt. Holly case presents the question (for the first time in the Supreme Court) of whether the “disparate impact” standard can be used to enforce the Fair Housing Act.  The Haas and Warren Institute brief explains why redevelopment plans like Mount Holly’s have a disparate racial impact by setting out the history of governmental policies (federal, state and local) that created segregated conditions in our metropolitan regions, and illustrates how seemingly race-neutral government decisions and private housing choices both perpetuate and exacerbate those patterns.  The brief argues that the disparate impact standard (which has been affirmed in eleven federal courts of appeals) remains essential to address the ongoing legacy of these historical policies.

Stephen Menendian, Assistant Director of the Haas Institute and one of the brief’s drafters, explained that the brief was filed because “although our nation has made considerable progress towards racial equality, residential segregation remains pervasive more than four decades after the passage of the Fair Housing Act, limiting many families’ opportunities for a better life.” Menendian says that he and the 60 other scholars who signed the brief believe that disparate impact claims are necessary to ensure that governmental entities land-use or housing decisions account for residential patterns brought into existence through historical public policies and private discrimination rather than inadvertently perpetuate or exacerbate these patterns.

The Haas and Warren Institutes’ brief is supported by 61 social scientists, housing historians, demographers and other researchers familiar with segregation and its effects. A full list of amici appear at the end of the brief, including Christopher Edley, Jr., Faculty Director of the Warren Institute; john a. powell, Director of the Haas Institute; and Richard Rothstein, Senior Fellow at the Warren Institute and Research Associate of the Economic Policy Institute.  Many other distinguished scholars have joined the amicus group, including Elizabeth Anderson, John Brittain, Nancy Denton, James Kushner, Ira Katznelson, Myron Orfield, Jr., Gregory Squires, among others.

To download a copy of the brief, click here.


Stephen Menendian: smenendian@berkeley.edu

Richard Rothstein: rrothstein@law.berkeley.edu