The tricky business of race-neutral laws and what you can do about it

Since the creation of the United States, color-blind laws and institutions have been held up as a remedy for race discrimination. In the famous 1896 case, Plessy vs. Ferguson, the dissenting opinion suggested that segregation should not be supported by the law because the Constitution was color blind.

This promise of color-blind justice was embraced in Brown vs. Board of Education, as Thurgood Marshall sought to challenge school segregation by arguing that what made school segregation unconstitutional was that it was color conscious. Since Brown, courts have embraced the idea that color-blind, or race-neutral, laws and policies were the best way to remedy the harms of racism and segregation.

However, single-family zoning and discriminatory appraisals reveal the limitations of race neutrality. In both instances, the letter of the law is technically race neutral, as the relevant zoning codes and appraisal manuals are not legally permitted to discriminate on the basis of race, but their racialized outcomes show how racial bias shapes their application in real life. Without explicit practices designed to counteract the racism embedded in these applications, the impacts of structural racism proliferate.

Beginning with McCleskey vs. Kemp (1987), the courts have consistently rejected attempts to challenge policies that have racially disparate impacts. This has forced governments interested in promoting racial equity to use race-neutral proxies, such as income or neighborhood, to address social inequality.

As a result, the laws and policies that govern our work make it challenging to counter the legacy of systemic racism head on, despite clear and well-documented evidence that racial bias and discrimination continue to shape the contours of housing investment and opportunity today.

Because racist practices were so endemic to the construction of the modern housing and community development system, and continue to wreak such havoc, racial equity should be a central focus of our collective efforts to improve the housing ecosystem.

Targeted universalism is one helpful framework for navigating our current legal constraints to address inequities in a meaningful way. A targeted universalism framework asks you to set universal goals for all people and then develop strategies to reach those goals “based upon how different groups are situated within structures, culture, and across geographies to obtain the universal goal.”

A good example of the use of targeted universalism in housing is the Portland Preference Policy. Portland, Oregon, has a long history of racial discrimination going back to laws prohibiting Black people from being within the city limits after sunset. By 2010, Albina, the city’s Black neighborhood, had lost 10,000 Black residents to displacement and gentrification in the wake of redevelopment. In response, the city decided to develop a policy that would target the communities that had been displaced.

To comply with federal law, the policy had to be race neutral, so the city articulated a universal goal of providing pathways for formerly displaced residents or their kin to return to their neighborhoods, then employing strategies to reach and support Black residents. The strategies were based on a historically specific understanding of displacement and were built around criteria designed to reach as many Black former residents of Albina as possible without explicitly mentioning race.

There are problems with the way the color-blind doctrine has resulted in place becoming a proxy for race. First, its effectiveness relies on the continued spatial segregation of communities of color. Second, place alone can fail to account for other specific needs of targeted populations. For instance, when California tried to support race equity in its COVID-19 vaccine rollout by targeting resources to zip codes with high risk factors, many affluent white residents traveled to those areas to get vaccinated while vaccination rates among Black and Latinx populations remained low. However, when outreach strategies were specifically crafted with high-risk communities in mind, the distribution was more equitable.

Though using place as a proxy for race can be problematic, within the current legal confines of race neutrality, place-based strategies designed to remedy historical harms and remove specific racialized structural barriers remain critical to improving racial equity.