Blog #67 – Fair Housing Act, Disparate Impact Claims, and the Supreme Court
Re: Texas Department of Housing and Community Affairs et al. vs. Inclusive Communities Project, Inc., et al.
Today’s Supreme Court win in a Texas Fair Housing case1 is a great win for measures aimed at contesting racial discrimination in housing, especially given the composition of the Supreme Court today.
But there’ are reasons not to get complacent about the meaning of the decision, in some of the specific language of the Court’s opinion.
Overt racial discrimination in public actions has long been condemned in the United States, and recent events in a staunchly southern state such as South Carolina in the aftermath of the recent murder of nine African-Americans during church services by a white racist suggest that at least the overt display of racially offensive beliefs and conduct meets widespread, if not unanimous, popular condemnation. But there is also substantial evidence of continuing discrimination based on race and ethnicity is many aspect of U.S. life, and very visible in patterns of inequality and racial segregation in housing and urban planning practices. The result is a pattern in which racist conduct is denied as being racist, is explained by many other considerations but not by prejudice, in which practices having a demonstrable discriminatory effect are justified by all manner of claims as to innocent intentions and legitimate non-racist goals. Housing discrimination in many communities are clear examples.
The Supreme Court’s decision opens the possibility of serious on-going usage of apparently innocent non-discriminatory purposes for actions having a discriminatory, or “racially disparate”, impact. It may open the door to extensive controversy and perhaps litigation aeound what legitimate public concerns may justify actions even if they do have a discriminatory impact.
To be specific:
The Court’s Syllabus states:
“Re¬medial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial tar-gets or quotas might raise difficult constitutional questions. “
In Kennedy’s opinion, citing the employment discrimination cases:
“…not all employment practices causing a disparate impact impose liability under §703(a)(2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims.”
Further, “These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system…. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must deter¬mine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.”
“disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability man¬dates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an in¬strument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.”
“It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapi¬dated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a community’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in sub¬urban communities. As HUD itself acknowledged in its re¬cent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighbor-hoods with any particular characteristic.” 78 Fed. Reg. 11476. “
Terms such as “race –neutral remedies,” or “a mix of factors contribut[ing] to a community’s quality of life,” and “legitimate needs” that may outweigh disparate impacts, or prohibiting taking a community’s “particular characteristics” into account in locating housing, may well lead to delegitimize such frequent progressive goals of public planning and zoning actions as achieving diversity, promoting equality, distributing based on need, all of which to be meaningful must clearly take racial and ethnic characteristics into account in formulating policies.
This is all language, depending on how it is interpreted in the future, that may turn disparate impact cases into long-drawn-out technical planning debates about what “a community’s quality of life” is, or whether economic development is an appropriate public purpose and how it might be achieved, etc. It would be ironic if the law were to be interpreted to hold that racial discrimination in housing is bad unless it “serves a legitimate business purpose,” as the bald language often cited in employment discrimination cases reads. And it would be upsetting indeed if the cautious language of the decision limiting disparate impact claims to those challenging practices that have a “disproportionately adverse effect on minorities” were broadly interpreted to strike down the disparate positive impact that plaintiffs often in fact seek in remedies, a disparate impact that favors racial minorities but adversely affects other minorities, e.g. small property owners, or, for that matter, the wealthy.
The affirmative actions required of governments to implement the Fair Housing Act within their jurisdictions is not touched on in the Court’s decision. The explicit holding that race may not be part of any remedial order, after a finding of adverse impact in violation of the Act, is a potential crippling threat to efforts at affirmative action to overcome findings of racial disparities. If evidence of a disparate impact of a governmental action is a valid reason to invoke the Fair Housing Act, why is it not appropriate to impose a statistical measure – an affirmative remedy taking race into account, a “racial quota”? – as part of the remedy?
The Court holds that “the FHA does not decree a particular vision of urban development.” But many of its proponents certainly thought it did: a vision of an urban development that is socially, economically, and physically just, in which racial minorities will be full and equal citizens entitled to share in all the benefits of urban life, without discrimination. Such a vision implies affirmative action, as well as the absence of negative, by government. It would be a shame if this decision buried that vision.
Lawyers, planners, and advocates for diversity and racial justice should remain on guard.
More positively, perhaps this otherwise welcome decision can be seen as a step forward in crafting stronger positive role for the federal government in the area of housing and urban development. The logic of the decision, although limited by foreboding language by this Court, suggest there is much that could be done at the federal level to in fact develop a broad vision of a desirable urban policy in the cities of the nation. It would be a vision hardly to be expected of this Court or of this Congress, but perhaps could be thought for what a progressive urban platform might be for 2016 and the longer-range future.
1. Available at: http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf