The recent Supreme Court decision in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. concerns a more complicated question than whether plaintiffs may establish liability under the fair Housing Act (FHA) without proof of intentional discrimination. At its core the case is about how the country has achieved racially-discriminatory outcomes in housing and in countless other areas of American life without racially-discriminatory intent. How have we done innocently that which we say we no longer do maliciously?

Take, for example, Wards 7 and 8 in the nation’s capital. Together these two wards comprise some of the poorest and most racially-isolated neighborhoods in the country. No one seriously disputes that when these neighborhoods first became a repository for black people that was what was intended to happen. The area was developed in the 1850s as one of the District’s first suburbs for working class whites. Restrictive covenants prohibited the sale, rental or lease of property to people of African descent.