Is SCOTUS Preparing To Gut Another Civil Rights Law?

The wingnut majority court has been spoiling for a fight over the 1968 Fair Housing Act (FHA) for quite a while ...

Last Wednesday was the fifth anniversary of the Supreme Court’s decision on Citizens United v The Federal Election Commission which basically turned the country’s election process into an auction. A few years later SCOTUS stripped voters of much of the protection of the Voting Rights Act. On Wednesday, two days after the holiday honoring Martin Luther King, the Roberts Court ramped itself up to do it again.

The wingnut majority court has been spoiling for a fight over the 1968 Fair Housing Act (FHA) for quite a while. Not so much the law, but the related application of an argument called disparate impact. SCOTUS had earlier agreed to hear two other cases but both evaporated. Magner v Gallagher was dismissed in February 2012 by agreement of both sides then Mount Holly v Mount Holly Gardens Citizens in Action, was settled in November 2013. That settlement appears to have been largely at the urging of the Obama Administration and some civil rights groups out of fear over the Court’s agenda.

SCOTUS got its third shot this week in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. In the 2008 suit Inclusive Communities (ICP) an organization seeking to improve housing opportunities in Dallas, charged that the scoring system used by the state (DHCA) to award federal tax credits for low income housing disproportionately placed those projects in areas with high percentages of poor and/or black residents. This, ICP charged, limited the ability of poor and minority persons to relocate into mostly white areas. DHCA argued in return that its scoring system was based on solid legal grounds and awarding the credits to projects in minority communities was the result, not the intent.

This brings us to disparate impact. This is an argument that allows suits brought under the FHA to claim that a discriminatory action has impacted a protected group more than others, but does not require proof that the alleged discrimination was intentional. That over the last 40 years appellate courts have consistently upheld disparate impact decisions makes the SCOTUS agreement to hear this case a bit inexplicable.

In the original suit ICP was unable to prove that the scoring system was imposed with discriminatory intent but did prove to the court’s satisfaction that nearly all of the housing units approved under that system were in areas with less than 50 percent white population. That ruling was subsequently upheld by the 5th Circuit Court of Appeals.

Texas is asking the court to bar the use of disparate impact in fair housing cases. Its argument is that the language of the law bars housing discrimination “because of” race, color, religion, sex, familial status, or national origin,” and that the word “because” implies volition by the offender. ICP argues that the numerous rulings upholding the doctrine of disparate impact could have been interrupted if Congress had chosen to change the law. That they did not do so, even while otherwise amending the law in 1988, argues that they intended the law should cover such impact.

Dozens of Amicus briefs have been filed on both sides of the issue. Those for the respondent (ICF) are largely from consumer groups, housing advocates, and human rights organizations. Those on behalf of the petitioner (DHCA) come from real estate interests, lenders, credit reporting companies, and other businesses.

One of the latter, filed by the U.S. Chamber of Commerce and the American Bankers Association, supports the Texas claim about the letter of the law. It maintains that the respondent is asserting a new right of action that the Court has never recognized and that the court has a longstanding and well developed framework to address whether Congress intended an action to proceed. That framework entails a more demanding statutory inquiry than is put forth in this case, i.e. the respondent must show “affirmative evidence of congressional intent” to permit a cause of action for disparate impact.

Other petitioner briefs concentrate on the harm disparate impact does to their businesses. One, filed by a consortium of insurance companies, alleges that imposing a liability its basis strikes at core principles of sound insurance practice and would impair state laws which control insurance regulation.

ICF’s argument and of briefs supporting it mainly focus on the value of the outcomes of disparate impact. One, filed by 16 organizations including the National Consumer Law Center, ACLU, and the National Organization of Women, calls the 40 years of interpretation of disparate impact by federal courts “transformative in combating housing discrimination,” but contends that discriminatory barriers to equal housing remain deeply entrenched.

The brief looks at two contemporary forms it says have had devastating consequences. It blames discrimination in subprime lending for many of the problems that caused the foreclosure crisis. Here, it says, disparate impact analysis provides an essential tool, allowing the examination of aggregate lending data to uncover disparities and determine if they can be justified by credit risk or any other legitimate business considerations.

The second area is sex discrimination against victims of domestic violence. The brief cites the example of disparate impact analysis used to determine whether zero tolerance policies in public housing present women with unacceptable alternatives, enduring domestic abuse or calling police with a possible eviction as the result.

That brief shows in part the importance of this case. Fair housing is more than being given an even shot at putting a roof over one’s head regardless of race, religion, gender and all of the other language of protected classes. It also means the cost of that roof, keeping that roof, and having that roof located in an area of one’s choosing. And disparate impact goes behind housing. It is used to protect civil rights in other areas including employment, education, and yes, voting.

Keep your eye on this court. Chances are they are about to do more violence to the rights of many of our citizens.