Excerpted From: Heather R. Abraham, Segregation Autopilot: How the Government Perpetuates Segregation and How to Stop it, 107 Iowa Law Review 1963 (July, 2022) (294 Footnotes) (Full Document)


HeatherRAbrahamThe United States government is not a neutral bystander to housing segregation. Although its segregative influence is not as evident today, its contemporary activities produce the same outcome as the past: “hyper-segregated” metropolitan regions plagued by race-based zip-code disparities. As if on autopilot, its spending and regulatory activities routinely reinforce segregation. But this posture is not preordained. The government has the authority and tools to counteract housing segregation. This Article takes on the government's segregative effect in two original ways: First, it exposes a litany of examples of how the government sustains segregation not simply in HUD programs, but across executive departments. Second, it offers an administrative law framework to detect and dismantle its segregative footprint. Moreover, this Article answers the call for more critical legal scholarship in administrative law, an area of law that is often perceived as procedural--and therefore racially neutral--when it is anything but neutral.

Segregation is a costly self-imposed error. It is not a natural phenomenon. It is government-subsidized and government-reinforced. “Actions of government in housing cannot be neutral about segregation. They will either exacerbate or reverse it. Without taking care to do otherwise, exacerbation is more likely.” This Article uses the term “autopilot” to reflect this phenomenon--that the government perpetuates housing segregation unless redirected. The term “autopilot” is not intended to downplay the significance of civil rights achievements that curbed the government's more direct segregative practices like redlining, but simply to highlight that the government still perpetuates segregation today.

Segregation's impact is far-reaching. neighborhoods nurture countless other inequities, resulting in a grossly distorted opportunity map that betrays the cruel reality that where you live can determine your future. steep costs spill over into virtually all aspects of American life. Some of the documented ways segregation infiltrates our society include how it drives the racial wealth gap, undermines metropolitan GDP, drastically diminishes access to life opportunities like quality education and healthcare, and ultimately results in highly unequal health outcomes like shorter life expectancy and higher homicide rates for communities of color. “Dozens of other outcomes tell the same story. Indeed, on almost any measure one can pick, outcomes for African-Americans are unambiguously worse-- often dramatically worse--in the highly segregated areas.”

By contrast,

[g]reater integration tends to improve black proximity to jobs. It almost always increases school integration (much more reliably than school integration fosters housing integration) and, in general, improves the quality of public services for blacks. There is wide agreement that segregation tends to concentrate poverty, and thus, lower segregation sharply reduces the number of blacks living in high-poverty neighborhoods ....

Thus, the gains that come with lower segregation accrue particularly to the households that need it most. This body of research tells us that segregation will systematically undermine even the most well-intending social programs designed to target the lowest income households. itself must be addressed.

But what the government can build it can also dismantle. Effective tools exist to reverse course. One such tool is an underused provision of the Fair Housing Act of 1968. The “affirmatively furthering fair housing” (“AFFH”) mandate is a one-of-a-kind civil rights duty. It requires every federal agency--and by extension every state and local receiving federal funds--to take affirmative steps to undo segregation in its housing and development activities. Unlike some civil rights laws, its scope is not limited to one agency or program. Its plain language extends to “[a]ll executive departments and agencies [that] administer ... programs [or] activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) ....”

Unleashing the AFFH mandate's potential has profound real-world implications. Even modest reductions in segregation can meaningfully improve access to opportunity and quality of life for communities of color. For instance, a decline of just eight points on the 100-point Dissimilarity Index that measures segregation “may eliminate as much as [one-third] of the black/white difference on key outcomes in education, employment, and earnings. This means that even a partially successful policy of housing desegregation can have enormously consequential results for millions of African-Americans.”

But until now, the federal government has failed to enforce the mandate. After decades of equivocating, U.S. Department of Housing and Urban Development (HUD) promulgated its first substantive AFFH regulation in 2015. However, the Trump Administration quickly rescinded it. In 2021, the Biden administration issued a final interim rule that restored definitions for AFFH-related terms and resumed HUD technical assistance to grantees engaged in voluntary AFFH planning, but the interim rule stopped short of reinstating any mandatory AFFH process. One year later, the Biden administration still has not released a proposed AFFH rule. Meanwhile, segregation flourishes. While housing segregation decreased after passage of the original Fair Housing Act in 1968, progress plateaued after a decade. Since 1980, most communities have only seen modest improvements.

Desegregation has been “far from universal and ... many metropolitan areas [have experienced] 'stalled integration.”’ Today, the vast majority of Black metropolitan residents live in places with “high” or “very high” segregation and approximately twenty-one large metropolitan areas remain “hypersegregated.”

Despite government foot-dragging, the AFFH mandate's statutory directive stands: “[All federal] agencies shall administer their programs and activities relating to housing and urban development ... in a manner affirmatively to further [fair housing].” This Article is the first to explore how agencies have--or have not--applied the mandate. Scholars generally treat fair housing as HUD's domain despite the mandate applying to all federal agencies engaged in housing-related activities. This Article therefore looks beyond HUD to explore how other agencies contribute to segregation, and how they could mitigate it. Virtually all agencies engage in housing-related activities, even the Department of Defense and Internal Revenue Service. As such, each agency is legally obligated by the AFFH mandate to take individualized steps to counteract its segregative impact that begins within the agency and extend outward through cross-agency collaboration. It is untenable to tackle segregation from one relatively small office within HUD.

This Article unfolds as follows: Part I begins with AFFH mandate's scope. It examines the contours of the statutory duty, which have largely been defined by case law, before tackling the untouched question of how far the mandate actually reaches--namely which agencies and activities are implicated?

Part II offers a novel contribution to the literature: a litany of examples of how the government's contemporary activities produce and reinforce segregation. This Part audits how the government's “segregation autopilot” operates in practice. It describes the complex interplay between layered systems that shape housing and urban development--among them transportation, education, and the natural environment. Part II thus explains how government investments and regulatory activities--or the lack thereof--reinforce segregated living. Drawing on specific agency programs, it substantiates the Article's central argument that a collaborative, multiagency approach to dismantling segregation is not simply what the AFFH mandate requires as a matter of law, it is a more realistic strategy to mitigating government-perpetuated segregation.

Finally, Part III presents a set of prescriptions to disengage the autopilot setting. It proposes several administrative law tools, including agency-specific AFFH regulations, racial equity audits, interagency memoranda of understanding, and interpretive guidance to identify and reverse segregation-perpetuating activities. In addition to administrative tools, it identifies potential collaborative interagency models, drawing from analogous problems that cut across agencies, like climate change and public health crises.

Regulatory reform may seem like a lackluster solution to pervasive segregation. But contemporary segregation is a product of regulatory action-- and regulatory reform is a critical step toward normalizing system-wide thinking about structural racism. The United States has never invested the time and resources to audit how the government perpetuates housing let alone enacted legal reforms to mitigate it. This Article offers the AFFH mandate as an entry point for regulatory reform that finally recognizes and rectifies the federal government's weighty influence on our segregated landscape.

[. . .]

Racial segregation remains a defining feature of American society. As if on autopilot, the government routinely reinforces segregation through its investments and regulatory activities. James Baldwin once observed that he was witnessing the death of segregation, but the real question was “just how long, how violent, and how expensive the funeral [was] going to be.” Still today, the federal government prolongs segregation's funeral. But the government's posture is not preordained. It has the authority to shift its influence to affirmatively resistsegregation. That shift could make all the difference.

Associate Professor of Law and Director of the Civil Rights & Transparency Clinic, State University of New York at Buffalo School of Law.