Witnesses urged senators to bake provisions to ensure equity into President Joe Biden’s proposed infrastructure package or they would risk repeating a history of public investments that locked African Americans and minorities out of buying homes and building wealth.

Federal policies, including provisions of the New Deal and a 1950s law to expand and build highways, worsened segregation and drove divestment from Black and minority communities, witnesses said Tuesday during a Senate Banking Committee hearing on racial discrimination in housing. 

Senate Banking Chairman Sherrod Brown, D-Ohio, asked witnesses how to fairly implement future infrastructure packages, such as the one Biden introduced last month. Biden’s proposal includes $213 billion to build and rehabilitate affordable housing units.

Past infrastructure investments, including the creation of the Federal Housing Administration and construction of the federal highway system, created jobs and drove economic growth, but only for some communities, Brown said.

“They explicitly, as we know, excluded or directly harmed lower-wealth communities and communities of color,” Brown said. “How do we ensure that new investments in infrastructure help promote broad-based economic growth while addressing economic and racial inequalities and equities?”

Lisa Rice, president of the National Fair Housing Alliance, said lawmakers must acknowledge that housing is part of infrastructure.

“When you think of all of the infrastructure bills that the nation has passed in the past, those infrastructure bills had a great impact on people’s ability to sustain their housing,” she said. “It disrupted homeownership opportunities for many communities of color and it created, actually helped create, residential segregation.”

Lawmakers should apply a “patina of equity” to the entire infrastructure package, Rice said, adding that a fair housing mandate should be applied to the package to ensure programs and investments are doled out equitably.

“The infrastructure bill has to include both supply-side and demand-side provisions,” she said. “You can’t just build up housing opportunities without ensuring that people are going to be able to adequately access them.”

“If we exclude the reality that families of color are not in the same position because of historical and discriminatory practices to access affordable housing options, then we’re going to be exacerbating inequality,” she said. 

Richard Rothstein, author of “The Color of Law” and senior fellow emeritus at the NAACP Legal Defense and Educational Fund, said a “disparate impact standard” should be applied to the infrastructure package to ensure there aren’t unintended negative consequences for African Americans and other minority racial and ethnic groups. 

Rothstein cited the 2015 decision to abandon a $2.9 billion plan to establish another light rail line in Baltimore, Md., and funnel the state funds allocated to the project into roads in the predominantly white communities surrounding the city as a policy decision that had a disparate racial impact.

The project would have brought good jobs, retail and housing opportunities to low-income, predominantly Black neighborhoods in Baltimore and instead built two highways to speed white commuters in and out of the city center, Rothstein said. 

“That had a disparate impact on African Americans. That policy choice wasn’t intended as a racially explicit policy, but we need to impose a disparate impact standard on it and on all the policies that we enact,” he said. “We should legislate that disparate impact standard into the Fair Housing Act because leaving it to rulemaking, as we’ve seen over the last decade, is subject to politicization and to repeal.”

The Obama administration investigated whether Maryland Republican Gov. Larry Hogan’s decision to scuttle the light rail project violated the 1964 civil rights law, but President Donald Trump closed the review without releasing findings. 

Ranking member Patrick J. Toomey of Pennsylvania and other Republicans likewise blamed federal policies for entrenching segregation and exacerbating the racial gap in homeownership, though they proposed different solutions.

“This history shows us that when it comes to housing in America, including housing discrimination, government has been the problem, not the solution,” Toomey said. “Unfortunately, the Biden administration does not seem to have learned this lesson. Its multi-trillion dollar welfare plan, with a bit of infrastructure sprinkled in, seems designed to repeat many of the mistakes of the New Deal and Great Society.”

Toomey in particular criticized the proposed $40 billion for repairs to public housing. 

“Housing projects are notorious concentrations of poverty, crime and other social ills,” he said. “More public housing will only commit more Americans to a substandard living arrangement and increase government dependency.”

Howard Husock, adjunct fellow at the American Enterprise Institute, said in his testimony that public housing prevented Black families from building wealth through homeownership. Rather than repairing housing projects, the government should sell off the valuable land they sit on and share profits with long-time residents, he said. 

“Rather than giving people a housing voucher and saying, try to use it somewhere, let’s pay them for exactly the kind of wealth accumulation they missed out on for 40 years,” he said.