The Supreme Court heard oral arguments Wednesday in a case on housing discrimination that threatens to undo decades of civil rights precedent and to bind the hands of housing advocates looking to combat persistent inequality. In taking up Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the Court must decide if the Fair Housing Act of 1968 allows for plaintiffs to challenge landlords, housing associations, or banks for practices that work to propagate segregation in neighborhoods, regardless of whether the practices and policies were intentionally discriminatory.
Known as disparate impact, this approach to redressing structural and systematic racial inequalities has proven a ready target for the Supreme Court’s conservative justices over the past five years. If the Roberts Court decides to rule against the civil rights community and narrow the Fair Housing Act to consider only cases of intentional discrimination in housing, the justices would strike a serious blow to the continuing advancement of racial and economic justice for minorities.
Passed in 1968 shortly after Rev. Martin Luther King Jr.’s death, the Fair Housing Act intended to redress the pervasive racial segregation between neighborhoods entrenched by the twin histories of slavery and Jim Crow. The statute prohibits anyone from refusing to rent, sell, or otherwise make available housing under equal terms on the basis of “race, color, national origin, religion, sex, familial status or handicap.” For decades, federal courts have interpreted the FHA widely to include claims made on the basis of disparate impact.
While the Supreme Court has never decided the issue itself, there has been practically no disagreement among the lower courts as to whether or not this reading of the law reflected congressional intentions or fit within the Constitution. In fact, in 1988, Congress passed an amendment to the law that excluded certain scenarios from disparate action claims, implying that the legislators intended for the law to be interpreted broadly in all other cases.
But the state of Texas is controverting those decades of precedent and asking the Court to find that the FHA should be limited only to instances of demonstrated intentional discrimination on the basis of race, gender, etc. In Texas Housing, a local housing nonprofit challenged the Texas state housing agency for effectively allocating all of its fair housing credits to black neighborhoods and virtually none to white neighborhoods. Inclusive Communities didn’t present evidence that the agency was intentionally trying to keep African Americans out of white neighborhoods. Using the disparate impact precedent, a lower federal court ruled in the housing nonprofit’s favor.
The Supreme Court is now revisiting the question. Civil rights advocates and fair housing lawyers are worried. And rightly so.
After all, the fact that the case has come before the nine justices is telling to begin with. Generally speaking, the Court will intervene when there is disagreement among lower courts over a matter of judicial interpretation. In this instance, all the federal courts agreed that the disparate impact reading was correct and constitutional. Instead of letting sleeping dogs lie, the justices have sought on three separate occasions to take on the Fair Housing Act’s reliance on disparate impact. In the first two cases, housing advocates managed to settle the claims outside of court before the oral arguments began — in large part out of fear that the Supreme Court would make a sweeping reversal.
If Wednesday’s oral arguments are any indication, civil rights advocates are facing a tough uphill fight. At first, as Lyle Denniston notes at the SCOTUS blog, Scalia seemed to support the housing nonprofit. Congress’ amendments to the law clearly indicate that the legislature intended for it to allow disparate impact claims, Scalia said.
But as the second half of the oral arguments came around, Scalia tacked back to his expected position to the right. While the FHA might have intended to include disparate impact cases under its purview, Scalia expressed concern that such claims were ultimately unconstitutional because they forced housing authorities, legislatures, and landlords to make decisions based on race.
Unfortunately, that the Court has trained its eye on turning back the FHA does not come as a surprise. As a number of legal experts have noted, the Roberts Court is one of the most conservative the U.S. has seen since the 1930s, particularly in the area of civil rights. Over the past five years, the Court’s conservative voting bloc has succeeded in blunting the edges of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 — two of the key instruments for racial progress since the Jim Crow era. In opinion after opinion on issues ranging from employment to higher education, justices such as Clarence Thomas, Anthony Kennedy, John Roberts, and Antonin Scalia have showed their distaste for using disparate impact claims to redress systematic racial injustices. Instead, they advocate for a “colorblind” legal system that upholds policies and practices that do not see or legislate from the perspective of race.
As Roberts concluded in his famous 2007 opinion against affirmative action programs in education:
The only way to stop the discrimination on the basis of race is to stop discriminating on the basis of race.
This move to reinterpret racial justice in terms of race-neutral policies blatantly ignores the way that racism operates in contemporary America. It takes legislatures, landlords, and police officers at their word when they say that they took an action that harmed a person of color or a minority community without considering race. In doing so, this obsession with race neutrality ignores instances of unconscious racial bias and the more structural forms of racial marginalization and dispossession that continue to stratify American society.
Nor does the Court pay attention to the logistical difficulties of proving someone intended to discriminate on the basis of race. After all, we no longer live in the era of Bull Connor and Gov. George Wallace where segregationists openly declared their intentions in public. Racial prejudice in contemporary America works covertly, subtly, through the unconscious beliefs and prejudices that push people to react differently to a person of color than they would a white person.
Since the 1960s, claims of disparate impact have proved an effective tool for redressing centuries of deprivation, discrimination, and dispossession on the basis of race — a fight that has not come close to being completed. As Slate’s Jamelle Bouie notes:
We built our housing markets on a structure of discrimination, from bias in lending and state-sanctioned segregation to exclusionary zoning and active attacks on minority homeownership. To fix this, you can’t just ban discrimination, you need a countervailing force; otherwise, inequality would reproduce itself.
Without disparate impact claims, that inequality could become a whole lot worse.
For some, the question still looms: Why should we care about whether or not our neighborhoods are segregated, if no one is blocking people by law from moving into any community they please?
Segregation in housing remains at the root of racial inequality. Where you live determines which schools your children attend (well-funded, high performing public schools versus poor, struggling ones), how close you are to certain job opportunities and how easily you can get there without having to own a car, how safe you and your family are, how familiar you are with people from other races, how close you are to healthy and cheap food options.
As The Atlantic’s Ta-Nehisi Coates wrote in his landmark piece, “The Case for Reparations,” housing policies were in large part responsible for the wealth gap that continues to distinguish between the life chances of white and black children. A 2014 study out of Harvard found that increased segregation, increased economic inequality, poor-quality schools, lower social capital, and the prevalence of single-parent households were the five biggest indicators that an area would not hinder its residents from being upwardly mobile.
The fight for fair housing policies has never been as attractive as the struggle for voting rights in the public imagination, but it is arguably just as important, if not more, for combating systematic racial inequality. We still have such a long way to go. If the conservative Court rules as expected, we might lose our most effective tool for securing equality in housing this year. And there might not be much that we can do about it.
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