Scalia is a surprise in Supreme Court challenge to Fair Housing Act

22 Jan 2015 | Author: | No comments yet »

Editorial: High court must not perpetuate segregation.

The Supreme Court appears poised to continue its systematic assault on our core civil rights laws. The disruption came shortly after the justices took their seats on the bench at 10 a.m., when a woman rose in the back of the courtroom and yelled, “Overturn Citizens United.” She was hustled from the room. After gutting the Voting Rights Act just two years ago, the court set its sights on our country’s fair housing laws when it heard oral arguments today in Texas Department of Housing and Community Affairs v. Justice Antonin Scalia on Wednesday appeared at times to side with the administration and civil rights groups during arguments over the reach of the landmark Fair Housing Act of 1968, a case that otherwise seemed to split the court along ideological lines.

The doctrine — known as “disparate-impact” — came under fire from several conservative justices at an oral argument. (Here’s a link to the transcript.) At the same time, the court’s four liberals seemed convinced that the entrenched feature of fair-housing enforcement was justified by legal precedent and practical realities of the housing market, reports WSJ’s Jess Bravin. Scalia seemed to agree with the court’s four liberal justices that the law can be used to ban housing or lending practices without any proof of intent to discriminate. Disparate impact allows one to prove that a policy is discriminatory by only showing that its results disproportionately affect one group of people—even if the discrimination wasn’t intentional.

The court is considering a challenge from Texas officials to the use of so-called disparate impact lawsuits, which allege that even race-neutral lending or housing policies can have a harmful effect on minority groups. Roberts Jr. seemed to take the protest in stride. “Our second order of business this morning …” he started to say, but he was interrupted as a second protester rose, followed, one by one, by five more. But there is even more at stake in the fair housing case, because the wrong decision would reduce economic opportunities for working families and raise the risk of another financial crisis. That means that what looks to be a neutral policy on its face has the effect of discriminating against minorities, whether the action was intended or not. “This has been the law of the United States uniformly throughout the United States for 35 years, it is important, and all the horribles that are painted don’t seem to have happened, or at least we have survived them,” he said. “So why should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people, [and] has not produced disaster?” Texas Solicitor General Scott A.

As ICP noted in its Supreme Court brief, Texas placed 92.29 percent of its tax-credit Dallas housing projects in minority census tracts before ICP challenged the practice in 2008. Civil rights organizations have speculated that conservatives on the court took up the case to knock out such lawsuits, which lower courts have uniformly allowed for 40 years. Congress drafted the act to give families two options to challenge discrimination: a claim that someone intentionally discriminated against them on the basis of race and a separate claim that someone adopted a policy or practice that had a disparate discriminatory impact on minority families. The question for the justices was whether plaintiffs suing under the housing law must prove intentional discrimination or merely that the challenged practice has produced a “disparate impact.” The first kind of proof can be hard to come by, as agencies and businesses seldom announce that they are engaging in purposeful discrimination. Later in the hourlong argument, Scalia made comments critical of disparate impact when he told Michael Daniel, lawyer for a Texas fair housing group, that “racial disparity is not racial discrimination.” The issue has galvanized critics, including banks, mortgage companies and conservative groups, who say federal housing law should punish only intentional acts of discrimination.

Solicitor General Donald Verrilli argued that disparate-impact suits help to deter practices that harm minorities without justification, such as apartment occupancy limits that disproportionately affect ethnic groups with large families. Two similar cases out of Minnesota and New Jersey reached the court in recent years, but those were settled in 2012 and 2013 just weeks before oral argument — in one case at the behest of the Obama administration. But because of inherent flaws in the tax-credit system, over time the urban-decay problems have tended to surface again and again as new projects age and lose their shine. Instead of renewing neighborhoods, these tax-credit decisions have perpetuated segregation and deterred balanced development between northern and southern Dallas.

By the time Congress amended the act in 1988, courts had already found disparate impact applied to the FHA, he said, and lawmakers passed some amendments to the law that seemed to recognize just that. “Why doesn’t that kill your case?” Scalia asked. Despite that high bar, disparate-impact claims have been the main tool for attacking some of the most persistent practices contributing to housing segregation. The group alleged that agency policies were keeping Dallas neighborhoods segregated and denying blacks a chance to move into safer neighborhoods with better schools.

Verrilli said such cases were outliers and said typical cases “in the heartland” such as zoning restrictions or occupancy rules are more straightforward. A Supreme Court ruling supporting the state could allow authorities to restore outdated policies that effectively ensure perpetuation of segregated pockets of poverty. We try to make sense of the law as a whole.” Justice Scalia’s position, however reluctantly arrived at, could align him with the court’s four-member liberal wing, all of whom voiced support for a broad interpretation of the law. “There was a grand goal that Congress had in mind” when it enacted the law, Justice Ruth Bader Ginsburg said. “It meant to undo generations of rank discrimination.” But Justices Stephen G. It could be argued that such a project would be good for the neighborhood but not promote integration in the way that building it in an affluent neighborhood might. When new low-income housing projects are denied to some neighborhoods in favor of dispersing projects to more affluent, nonminority neighborhoods, the downtrodden areas have greater difficulty attracting renewal projects.

Not only would a favorable ruling for the state harm civil rights, it would seriously erode efforts to bridge Dallas’ north-south gap. 2008: Inclusive Communities Project files suit in U.S. While lenders profited in the short term, these families were unable to keep up with their payments when housing prices fell, contributing to the chain reaction throughout the financial system. That’s why the American Financial Services Association, the American Insurance Association and the American Bankers Association are all pressing the court to eliminate disparate-impact claims. The giant corporations that these groups serve are hoping that limiting a basic civil rights law will give them new ways to tilt the playing field even more steeply against hardworking families.

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