Residential segregation in the United States remains till today a pressing civil right issue. Despite the approval of the Fair Housing Act legislation to ensure fair housing choice regardless of identity characteristics, under the Civil Rights Act in the 1968, today many of the nation's neighborhoods are still deeply segregated. Several studies see the Fair Housing Act as a failed promise not being effective in ending housing discrimination, overcoming segregation, and lowering the concentration of poverty in minority neighborhoods (Schwemm 1988; Kushner 1988; Armstrong 1991; Galster 1999; Sidney 2001; Larkin 2007; Powell 2009; Seicshnaydre 2012; Massey 2015). Both urban and policy experts have been advocating for a stronger governmental enforcement of the law, recognizing the legislation’s ‘limited-if-not-failed legacy’ in combating housing discrimination. Failing in attaining its policy objectives, the Fair Housing Act has become over time a compelling policy failure with severe consequences that are still affecting the current housing situation of American cities.
The Fair Housing Act - 1968
“It prohibited homeowners, real-estate agents, lenders, and other housing professionals from engaging in a range of practices they had commonly used to keep neighborhoods racially segregated, such as refusing to sell or rent to a person because of his or her race”
In 1968, the Congress of the United States passed the Fair Housing law, as the first national law to address racial discrimination in housing. As mentioned by several federal policy pronouncements, the Fair Housing Act had multiple goals: (i) the elimination of differential treatment, discriminating on the basis of race; (ii) the creation of stable and racially diverse neighborhoods; and (iii) the reduction of ghettos occupied by poor minority households. As illustrated by Douglas Massey’s black-white dissimilarity index, at the time of the Act’s passage, the levels of black residential segregation were extreme. The index shows ‘the degree to which blacks and whites are unevenly distributed across neighborhoods’, which in 1968 was around 78 (out of a scale of 100 of segregation), while the black isolation was around 66 (out of 100, when every black city dweller inhabits an all-black neighborhood). Today, evidences show that housing discrimination and segregation within the suburbs remain prevalent, proving the Fair Housing Act as an incomplete tool for integration and bringing into question its effectiveness in preventing discriminatory practices or breaking down segregation patterns. Almost 50 years after the passage of the Fair Housing Act, the pace of desegregation has been quite uneven, and many metropolitan areas remain just as segregated as they were in 1968 (Massey, 2015). The common critique of the Fair Housing Act mostly focused on the policy instruments’ limitation in eradicating housing discrimination. Most studies, in fact, examined the reasons why the relief awarded have been incapable of remedying residential segregation, questioning the effectiveness of a law in relying so heavily on private enforcement to systematically attacking the widespread patterns of discrimination and segregation in America's housing (Schwemm, 1988). The conclusions usually recommend the strengthening of the policy instruments, by expanding the list of potential private attorneys general included in the act or reinforcing the existing private fair housing organizations providing counseling and legal services.
The Fair Housing Act target and instruments
The Fair Housing Act came to the floor during a period of increasing visibility of the Black Power and it was passed right after Martin Luther King Jr.’s assassination in an effort to address, at least symbolically, the anger of African Americans who were rioting in the ghetto neighborhoods across the country. “Between 1966 and 1968, some of the worst riots had occurred in urban ghettos, and in 1968 fair-housing supporters adapted their discourse, using the riots to create a sense of urgency about addressing the problems of the ghettos, which they described as underpinned by housing discrimination” (Sidney 2001, pg 195). By doing so, the supporters of the Fair Housing Act “took advantage” of the urban riots as a window of opportunity to shape the social construction of a new target group, the black middle-class, presented as deserving better-housing choices and as distinct from the low-income blacks. They distinguished black residents along class lines, focusing the attention on a small group of middle-class professionals who deserved to escape their ghettos, and could afford to do so. Schneider and Ingram argue that the social construction of the target population “influences the policy agenda and the selection of policy tools, as well as the rationales that legitimate policy choices” (Schneider and Ingram 1993, pg 334). With social construction of target population, the authors refer to the ‘cultural characterization’ of the group of people whose behaviors are being affected by the policy. The social construction of target population is able to shape both the policy agenda as well as the actual design of a policy, becoming an embedded message about what government is supposed to do and which citizens are deserving and which not. The policy analysis stage sets goals to be achieved and identifies the people whose behavior is linked to the achievements of the desired ends. “The social construction of a target population refers to (1) the recognition of the shared characteristics that distinguish a target population as socially meaningful, and (2) the attribution of specific, valence oriented values, symbols, and images to the characteristics” (Schneider and Ingram 1993, pg 335). Target groups are those who stand to benefit or to receive burdens from the proposed policy. According to Schneider and Ingram, the manipulation of the target group image is among the key strategies that officials use to win support. In fact, the electoral implication of a policy proposal largely depends on the power of the target population itself and on the extent to which others will approve or disapprove the target. For this reason, the authors distinguish four types of target population. (i) the Advantaged, perceived as powerful and positively constructed (e.g. elderly, scientist, business); (ii) the Contenders, also powerful but negatively constructed and therefore undeserving (e.g. the unions, the rich and cultural elites); (iii) the Dependents, considered politically weak, but positively connoted (e.g. children, mothers, disables); (iv) the Deviants, weak and negatively constructed (e.g. criminals, gangs, drug addicted). The authors suggest that elected officials will tend to support policies that reward policy benefits to target groups with positive images, while distributing policy burdens to less powerful and negatively constructed groups.
In 1968, the riots were used by the fair-housing supporters to construct a new deserving target group.
According to Schneider and Ingram theory, “supporters created an image of blacks as “dependents,” politically weak but with a positive image, reliant on whites and government to solve their problems. Supporters talked of blacks as victims, trapped in urban ghettos by forces beyond their control; they depended on Congress to grant them dignity by enacting fair-housing law” (Sidney 2001, pg 195). The main argument of the supporters emphasized the potential of the fair housing act in enabling members of the black middle class to escape the ghetto, realizing the American dream “a man’s home is his castle”. The Fair Housing Act was envisioned to be a first step toward an equal and integrated society by opening opportunities in housing choice. Supporters emphasized that the fair housing legislation was essential to ensure the governmental protection of the freedom to choose where to live, as a matter of “equal justice for all Americans”.
According to this, the rationale used to shape the policy had its roots in the construct of choice, understood in the context of “equal housing opportunity”, assuming that all consumers can engage with the housing marketplace in a free and voluntary fashion. “This free choice would give families who could afford to leave the ghetto the ability to immediately escape to the suburbs. The legislation was not designed to eradicate the unjust conditions of the ghetto, but to accommodate the black middle class, whose lifestyle was viewed as most closely approximating the hard-working ideals of America” (Larkin 2007 ,pg 1626). The main purpose of the Fair Housing Act was to respond to the immediate need of the new target group (the black middle class) who could move to the suburbs, but was not allowed to do so because of racial discrimination. The aim of the Fair Housing Act was to protect the private housing choice, while the promotion of integrated neighborhoods and the reduction of ghettos would have come as indirect results. For this reason, the policy embraced the classification of housing as a free-market commodity, promising benefits to the black middle class by relying on the autoregulation of the free market to create new housing patterns (Sidney 2001).
The policy tools’ design reflects the discourse on free market processes for the black middle class, focusing its efforts on regulating the private housing market. Schneider and Ingram explains that elements of policy design, such as policy tools, differ according to the social construction and the political power of the target population. Policy tools aim to motivate the target population to comply with the policy or to utilize policy opportunities. The compliant target behavior is expected to be achieved through deployment of a combination of substantive and procedural policy tools aimed at specific kind of behavior. Therefore, the design of effective policy tools requires great attention to the behaviors and characteristics of policy targets rather than simply assuming a simplistic utilitarian conduct. According to Howlett, there is a significant behavioral component to policy tool design and choice, which is critical to policy success and failure. For this reason, the effectiveness and efficiency of the policy-making relies also on the right match between tools and target (Howlett 2016). As Schneider and Ingram argue, when benefits are directed to the advantaged group certain types of capacity-building tools are commonly expected to be used, while, when advantaged group are receiving burdens, “self-regulation that entrusts the group to learn from its own behavior and voluntarily take actions to achieve policy goals will be preferred, along with positive inducements” (Schneider and Ingram 1993, pg 339). In fact, policy tools for the ‘Dependents’ receiving benefits are different and usually rely on those eligible to make their case to the agency. Outreach programs are usually less common and many programs require the ‘clients’ enforcement in order to receive benefits.
The creation of a new target group of black middle-class dependents was able to justify provision of benefits to them, but the white homeowners and the housing industry still remained extremely politically powerful and mostly portrayed in positive terms. Imposing burdens on them would have been difficult and for this reason the policy tools were designed relying almost entirely on private enforcement.
The Fair Housing Act enforcement style was based on a combination of regulations (substantive tool) and juridical review based on ‘accessible’ legal procedures (procedural tool). The Fair Housing Act procedural tools were designed to rely primarily on private enforcement, providing three different methods of challenging discriminatory housing practices: (i) suits by the Attorney General in "pattern or practice" and "general public importance” cases; (ii) administrative complaints to the department of Housing and Urban Development (HUD), which may lead to proceedings in state or local "referral" agencies and, eventually to federal court suits by the complainants; (iii) direct court actions brought by private (Schwemm 1988). “Critiques of the federal fair housing enforcement effort invariably focus on the incredibly low numbers of cases and complaints handled by the Civil Rights Division of the Justice Department and by the Department of Housing and Urban Development (HUD). From the 1968 passage of Title VIII until 1980, the Civil Rights Division of the Justice Department brought approximately 300 cases; by 1979 it was handling about 32 cases per year” (Kushner 1988, pg 348). As pointed out by several authors, the primary weakness of the policy derives from the dependence upon private efforts to enforce it. In fact, most people are not litigators and may not be aware of their most effective legal options or may simply fear the expenses of persecuting. In line with the policy tools usually adopted for the group of dependents, “the price blacks paid for legislation prohibiting housing discrimination was the burden of enforcing it themselves” (Sidney 2001, pg 204).
The Fair Housing Act policy failure
The Fair Housing Act policy target and instruments formulation - designed for the protection of the black middle class freedom of choice for equal housing opportunity - undermined its own policy goals, resulting in one of the most famous policy failures in the United States. By solely ensuring antidiscrimination for financially empowered African Americans in the housing market, the Fair Housing Act was not able to achieve its three main goals for (i) the elimination of differential treatment, discriminating on the basis of race; (ii) the creation of stable and racially diverse neighborhoods; and (iii) the reduction of ghettos occupied by poor minority households. Analyzing the policy failure according to each goal, it is possible to understand that the policy rationale as well as the social construction of a specific target group are the elements at the core of the policy failure. The restrictive focus on ensuring freedom of choice for the black middle class not only led to the definition of ineffective policy instruments, but failed in taking into consideration other important socioeconomic dynamics contributing to reinforce segregated residential patterns. This inevitably affected the possibilities of policy success, by creating a mismatch between policy goals - defined to reduce housing discrimination and segregation on a city-wide scale - and policy target and instruments shaped exclusively for a limited group of black middle-class Americans.
Looking at the policy results on the elimination of differential treatment on the basis of race (goal i), the definition of policy tools and instruments relying on private litigation and the lack of adequate enforcement was not able to prevent discrimination. The policy didn’t impose severe sanctions to coerce those engaging in discriminatory practices, which allowed housing providers in not taking the law seriously because of the minimal sanctions. At the same time, it didn’t provide adequate authority and resources to the implementing agencies, such as the HUD, to enforce the provisions aggressively and ensure a faster pace of litigation. In fact, the victims of discrimination obtained the contested housing in only about one-fourth of these contested cases (Kushner, 1988). As Amstrong explains, “using private litigation to address residential segregation results in treating the problem as one of individual access rather than as illegal activity aimed at a segment of society” (Armstrong 1991, pg 912). In this way, the housing industry would be held accountable only when found guilty of a “pattern and practice” of discrimination. The complainant would have to undertake the burden of proof, while the charges would be resolved through conciliation. Schwemm also describes, “part of the problem is that victims of housing discrimination often do not even realize that they have been treated unfairly. A homeseeker may have no reason to question the apartment manager him that no units are available or the realtor who shows him homes only in neighborhoods where his own race predominates” (Schwemm 1988, pg 380). And even if a victim of housing discrimination understands what has happened, he may not want to sue, having often little knowledge of his legal options.
Despite the policy aimed at the creation of stable and racially diverse neighborhoods (goal ii), policy-makers failed to recognize that both white and black consumers’ housing choices were the driver in promoting segregated patterns of living. As Seicshnaydre explains, the policy efforts are targeting those who would suppress directly the choices of African Americans in the housing market-place. The Fair Housing Act tries to protect the choices of those who have been historically suppressed, without taking into consideration the housing choices of those who perpetuate the ghettos. In fact, “although whites are willing to live with a small number of blacks, they clearly prefer predominantly white neighborhoods. Blacks, Hispanics, and Asians, however, are willing to live in a neighborhood in which they are a numerical minority” (Seicshnaydre 2012, pg 982). Several studies demonstrated that the perception of the neighborhood desirability is highly influenced by its racial composition. As the number of minorities increases, the more it becomes undesirables for white residents (Low 2001; Wacquant 1993). Evidences also suggest that white people fear that increasing level of integration will lead to declining property values and rising crime levels (McKenzie 1994; Mahoney 1995). At the same time, on the other end, people of color and minorities tend to perceive mostly white neighborhood as unwelcoming and hostile and they thus gravitate towards more diverse neighborhood. Seicshnaydre explains that while blacks are historically more prone to neighborhood integration, it would be an overstatement to suggest that black would prefer living in starkly segregated white neighborhood if given the chance of choosing against more integrated neighborhoods. These beliefs and social dynamics, which were not addressed during the process of policy analysis and policy formulation, kept contributing to reinforce segregated housing patterns despite the approval of the Fair Housing Act. Like in a self-fulfilling prophecy, white residents would choose segregation expecting that most other white will choose the same, moving out from neighborhoods in which black people started to enter. The real estate industry contributed to reinforce this prophecy promoting this beliefs and operating on this assumption of white consumers’ preferences.
Finally, the reduction of ghetto neighborhoods occupied by poor minority households (goal iii) has not significantly improved in the years following the policy implementation because “antidiscrimination protections are only triggered when a household has the resources to participate in the housing market by exercising some choice among options” (Seicshnaydre 2012, pg 978). The nature of the equal housing law, which assume direct and active participation in the housing marketplace, implies the possibility of housing choice solely if correlated with income. According to this theory, the low-income residents of the ghettos do not have housing choice as a function of income rather than as a result of race discrimination. In fact, the market-based assumptions rely on the equation that rising income will be able to buy more housing choice for all racial and ethnic groups, ignoring that different neighborhood dynamics at play for poor white and black people (typically living in concentrated poverty neighborhood, with low-performing schools, and high rates of crime and violence) affect the respective ability of to climb out of poverty. Since the Fair Housing Act was predominantly designed to address the housing discrimination of the black middle class, the policy rationale didn’t tackle the housing patterns that stem from difference in income and results in patterns of economic segregation. For this reason, “the core nondiscrimination provisions of the FHA seem irrelevant to those residing in the most distressed, segregated neighborhoods and have contributed little to the dismantling of the ghetto” (Seicshnaydre 2012, pg 978).
Conclusions
Most of the studies on the effectiveness of the Fair Housing Act agree on the lack of adequate and concerted governmental enforcement efforts encouraging noncompliance with the law (Kushner, 1988; Schwemm, 1988; Amstrong, 1991). Till the end of Reagan Administration, the Fair Housing Act has maintained the traditional stance as a mediator, seeking voluntary cooperation rather than acting to enforce the fair housing. By limiting the analysis of the Fair Housing Act failure to the stage of policy implementation, the fair-housing critique mostly focused its attention on the programme issues that affected the policy delivery, such as lack of technical instruments and effectiveness in the implementation process. According to this theory, in 1988 several Fair Housing Act Amendments were approved in order to supplement the coercive and punitive functions of the original Act. As described in the instrumental policy learning theory, the Congress enhanced the instruments for carrying out the policy by recognizing of the limitation of the policy instruments and their implementation approach. Adopting a dual perspective in combating housing discrimination, the amendments aimed to compensate victims and punish violators, by lifting the limits on the complainant's punitive damage awards and instituting higher civil penalties. (Amstrong 1991, pg 925).
Only in recent years, scholars started to give greater attention to the role of process issues in the fair-housing policy failure (Sydney, 2001; Seicshnaydre 2012). Looking at the stages of policy analysis, design, and formulation, it is possible to understand the crucial role played by the social construction of a specific target group. A more in depth analysis of the conditions under which the Fair Housing Act is unanimously considered a ‘policy failure’ allows to identify gaps and drawbacks in the identification of the black middle class as the ‘dependent’ deserving group for better-housing choices, which affected not only the rationale for the policy instrument choice, but also compromised the possibilities of success in achieving the policy goals. By distinguishing along class lines and focusing the attention on a small group of black middle-class professionals who deserved to escape the ghettos, and could afford to do so, the design of the policy instruments relied primarily on methods of challenging discriminatory housing practices, requiring private enforcement to receive benefits. The focus on such a restrictive group of policy’s beneficiaries also failed in taking into consideration other important socioeconomic dynamics, which contributed to reinforce and promote segregated residential patterns overtime. The Fair Housing Act policy failure is reflected and confirmed by the current situation, in which residential segregation - almost 50 years after the Fair Housing Act - remains a pressing civil right issue of American cities. Once identified the problematic related to the social construction of the target group, advances to achieve a significant improvement in the policy effectiveness could be made by applying May’s social policy learning theory. Reviewing the policy process of social construction, by questioning the validity of beliefs about causes and effects of residential segregation and revising the perception and definition of policy targets, it became a necessary step to substantially progress towards the definition of a more effective policy in eliminating housing discrimination and promoting integrated living patterns.
Reviving the recommendation of Pressman and Wildavsky stating: “the more directly the policy aims at its target, the fewer the decisions involved in its ultimate realization and the greater the likelihood it will be implemented” (Pressman and Wildavsky 1984, pg 147) and keeping well in mind that the ultimate goal of a policy is to change the behavior of the target group, the question that still remains open for the revision of the American residential segregation policies is: who are we regulating for?
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