The United States Supreme Court and Residential Segregation: 'Slavery Unwilling to Die'
3 Journal of Law, Property, and Society 35 (2017)
Posted: 19 Oct 2017 Last revised: 29 Nov 2017
Date Written: October 18, 2017
Over the past century, the United States Supreme Court has played a significant role in sanctioning or inhibiting residential racial segregation. Its record has been mixed, but an overall pattern emerges. In the Civil Rights Era, from 1948 through 1968, the Justices approached issues of housing segregation open-mindedly, attuned to the reality of the challenges facing African Americans as they sought access to shelter in a climate of widespread discrimination that had been promoted and imposed by the federal government with the collusion of local governments, realtors, and landlords.
The Justices prohibited courts from enforcing racial covenants, struck down state constitutional protections for discrimination, and revived both the equal protection clause and the 1866 Civil Rights Act as constitutional and statutory barriers to racial discrimination in housing.
But after 1972, the Court: • rebuffed claims that access to housing was a fundamental right protected by the equal protection clause; • sustained governmental and private actions that reinforced residential segregation; • permitted popular referenda that had segregative effects; • declined to inhibit exclusionary zoning; • and refused to acknowledge the impact of structural racism in denying African Americans housing opportunities.
The Justices have adopted an anticlassification interpretation of the equal protection clause, crippling the ability of the states and other branches of the federal government to eradicate the stubbornly persistent effects of segregation. An understanding of this history is essential for efforts going forward to realize the promise of the equal protection of the laws in the domain of housing. It can clarify the Justices’ misunderstanding of colorblindness, realize the potential of the 1866 Civil Rights Act, and enable the Court to deal effectively more effectively with the reality of structural racism in housing.
Keywords: structural racism, residential segregation, United States Supreme Court
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