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Richard Rothstein writes that a pending Supreme Court case is crucial for the future of civil rights and integration policy.
“The U.S. Supreme Court could be on the verge of issuing a major setback to racial integration efforts. It will soon hear oral arguments regarding whether the federal government and states can pursue policies that perpetuate or exacerbate racial segregation in housing but that cannot be proven to have been designed with a racially discriminatory purpose. Federal appeals courts have consistently held that such policies should be prohibited if they have a “disparate impact” on minorities—if the consequence is segregation, even if no conscious intent to segregate can be proven. The Supreme Court may rule otherwise.
“The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from low-income neighborhoods, where parents themselves typically have less education, are exposed to less literacy at home and so come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.
The case before the court, Inclusive Communities Project v. Texas Department of Housing and Community Affairs, is important because the U.S. Supreme Court has increasingly made it more difficult to fight segregation in many areas of American life, requiring civil rights plaintiffs in most instances to prove that defendants consciously intended to discriminate. For example, the court has effectively ended its enforcement of elementary and secondary school desegregation by ruling that racially homogenous and isolated schools don’t violate the constitutional principles of Brown v. Board of Education, unless school districts purposely assign African American students to separate and inferior schools — if not by explicit ordinance, then by provable intent. When it comes to the Fair Housing Act, however, civil rights groups and the Department of Housing and Urban Development (HUD) have continued to insist that even when the intent to discriminate is not present or provable, housing policies are prohibited by law if they have a disparate impact on minorities by perpetuating minorities’ isolation. Whether a conservative majority of the Supreme Court prevents such enforcement of housing legislation by applying the narrow “intent” requirement of its radical constitutional theory will be decided in this case.”