Washington state officials recently returned to a form of race-based housing discrimination that many thought had been banished long ago by basic federal and state-level civil rights protections.

In 2023 a majority of state lawmakers passed HB 1474 to create the Covenant Homeownership Program. The program went into effect in July and imposes a new $100 per-document filing fee to fund subsidies for first-time homebuyers. The extra fee raised the cost of every document needed to buy a house, like Deeds of Trust, recorded documents and property line surveys. The new fees are expected to cost homebuyers up to $100 million a year.

Aside from the added fee, a government policy that promotes homeownership is a smart idea. Democracy and free market capitalism depend on wide access to private property ownership, and protecting private property rights is a core function of government in a free society.

The Covenant program, however, is different.  It does not offer equal opportunity for all. The program is only open to those who lived in or had a parent, grandparent or great-grandparent living in Washington before 1968 and who meet one of the following government-defined racial identities: “Black, Hispanic, Native American, Alaska Native, Native Hawaiian or other Pacific Islander, Korean and Asian Indian.”

It’s not hard to see who is being excluded. Under the Covenant restrictions White and Jewish residents are barred from participating, regardless of their current housing or economic status. Apparently, the first-time homeownership dreams of some Washingtonians matter more than others.

For those who qualify, the Covenant program offers a significant financial windfall. It pays toward downpayment and closing costs in the form of a zero-interest loan or secondary mortgage. No buyer cash is required. The zero-interest loan need only be paid back when the home is sold or re-financed.

Disparate impact is not a bug, it’s a feature of the Covenant program. For that reason it appears to violate several long-standing federal and state civil rights protections. To cite some examples:

• The Federal Fair Housing Act, 42 U.S.C. Section 3605, which bans discrimination in housing on the basis of race, color, national origin, religion, sex, disability or familial status.

• The Fair Housing Division of the U.S. Department of Justice says that federal law prohibits “race discrimination in sales and rentals of housing.” (Source: https://www.justice.gov/crt/fair-housing-act-1.)

• The Washington Civil Rights Act, RCW 49.60.400, which bars government discrimination or preferential treatment “to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

This last is a popular state law passed by voters in 1998 to prevent state officials from discriminating against their own citizens. The Covenant Program does the opposite. It re-introduces exactly the kind of unequal and unfair treatment civil rights laws are intended to stop, especially racial discrimination as practiced by legislators and state officials.

The program appears based on the recommendation of Ibram X. Kendi that, “The only remedy to past discrimination is present discrimination.  The only remedy to present discrimination is future discrimination.”

Adopting state-sanctioned housing discrimination today does nothing to change the wrongs that state law sanctioned 56 years ago. Advocates no doubt think they are righting past transgressions. If the Covenant program provided redress to those who had suffered housing discrimination they would be right – and in fact that’s exactly how civil rights law is supposed to work.

Instead the Covenant program promotes unfair treatment today in the name of past unfair treatment. That approach only perpetuates further social injustice. Instead, state officials should work to extend the opportunity to own private property to everyone equally, so everyone can have an equal shot at the American dream.