SCOTUS Decision: “Disparate Impact” and the Future of Equal Access to Housing

The Supreme Court released its decision today on the constitutionality of a policy aimed at promoting racially and socioeconomically-diverse, integrated communities across America. The Institute for Social Progress served as a signatory to the amicus curiae briefs of both the Texas Dept. of Housing and Community Affairs and to a preceding Mt. Holly vs. Mt. Holly Gardens Citizens in Action Case.

The case before the Court – Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project – centered on questions of whether federal and state governments have the authority to prevent, or offer legal redress for, discriminatory housing practices. The suit was referred to the Supreme Court after both the lower, district and appellate courts ruled that the Texas Department of Housing and Community Affairs’ pattern of allocating tax credits for housing developments violated the Civil Rights Act of 1968 (also known as the ‘Fair Housing Act’) by perpetuating racial and income-based segregation throughout the city of Dallas.

At the core of this suit was a legal principle known as “disparate impact” – the idea that “even when the intent to discriminate is not present or provable, housing policies are prohibited by law if they have a disparate impact on minorities by perpetuating minorities’ isolation.”

The principle of disparate impact was, according to many practitioners and legal scholars, the implied standard of proof of discrimination set forth in the Fair Housing Act of 1968. In the nearly 50 years since, it has been consistently recognized and codified in successive court rulings, and, as recently as 2013, was confirmed by a Department of Housing and Urban Development memo to be the standard of liability at the core of the Fair Housing Act.

The ruling in Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project  is significant, for a number of reasons.

First, the Roberts Court hadn’t heard a disparate impact case prior. Two pending lawsuits covering the standard and slated for appearance before the Court, Magner v. Gallagher, 2012 and Mt. Holly v. Mt. Holly Gardens Citizens in Action, 2013, were settled out of court before argumentation.

Second, on issues of race, a majority of the Roberts Court tend toward a strict constructionist interpretation that typically finds race-conscious policies/practices to be unconstitutional.

During argumentation, some of the traditionally-conservative justices demonstrated an uncharacteristic level of scrutiny on the reasoning presented by the legal counsel for the Texas Department of Housing and Community Affairs.

After years of judicial onslaught, the standard of disparate impact under the Fair Housing Act is one of the final permitted uses of color-consciousness in American law. As our nation’s urban and suburban landscapes become more isolated and more segregated, the importance of disparate impact cannot be overemphasized.

At first blush: SCOTUS appears to have preserved the thesis of disparate impact in housing, however, as in education have insisted that this be applied in a color-blind way with narrow exceptions.

You can read the full decision here: http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf