Blog 67a -Fair Housing Act Opinion’s Troublesome Language — replaced by #68 and #69.


The Fair Housing Act Opinion’s Troublesome Language

Unless noted, all italized quotes are from the Court’s opinion.

The Court’s Syllabus states:

“Remedial 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 targets or quotas might raise difficult constitutional questions. From Court’s Syllabus

“Race-neutral remedies.” The language might be interpreted to mean remedies that resulting race–neutral, i.e. non-disparate, results. But that would be a stretch. For it is the remedy, not the result, that is to be race-neutral. And a racial target might be just the thing to achieve that result, but is clearly disapproved. As would, presumably, any action that sought affirmatively to balance racial discrimination by redressisng its results or addressing its causes.

“It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated 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”. From Court’s Syllabus

“Some other priority.” Should it not be held rather that “Avoiding racial discrimination” or “a disparate adverse racial impact” is not just “some other priority that might seem preferable.” Particularly when the Syllabus, the Opinion, and the citations from the employment discrimination cases, suggest that “a legitimate business purpose” (to make a profit?) or cost and traffic patterns,” or “a community’s quality of life” (maintaining it racial exclusiveness?) may excuse otherwise illegal disparate impact??

Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies.

“Arbitrary?” Policies addressing land use density through zoning regulations, or traffic control, or quality of life, are all valid governmental policies. So such policies are not arbitrary, and do not violate the Fair Housing Act even if they have adverse disparate results on minoritie?

“It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated 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”

No doubt many entrepreneurs are sorry that their policies create adverse impacts, but point to “market factors” that unfortunately influence their decisions: some white buyers prefer white neighborhoods , are afraid of “changing” neighborhoods, etc., can adduce evidence that those are the facts. That avoids the need to abide by the Fair Housing Act? And racial prejudice in a community is one of the “mix of factors” a zoning board should consider in its work?

…not all employment practices causing a disparate impact impose liability under §703(a)(2) [citing an employment discrimination case]. In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims.”

“These cases [on employment discrimination] 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 determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.”

So “practical business choices and profit-related decisions” unless a complaint can show that there is no other way a business might make the same profit without creating a disparate impact? Otherwise making a profit justifies discrimination?

The Fair Housing Act itself uses following language: “No one may take any of the following [discriminator] actions based on race, color, national origin, religion, sex, familial status or handicap.”

How can a remedy then be fashioned for a violation if it has found an adverse impact based on race,if it does not examine the impact of the proposed remedy to see how it impacts groups, including those defined by defined by race, and mandate affirmative action, likewise based on race ?

[This in an expansion of Blog 67, and is replaced by #68 and #69.]

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