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

22 Jan 2015 | Author: | No comments yet »

Disparate-Impact Theory Finally Gets Its Test At Supreme Court.

Civil rights activists who came to the Supreme Court on Wednesday expecting a conservative assault on a decades-old law used to fight housing discrimination left wondering whether they had found an unlikely defender. 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.

A case over the meaning of two words in a federal housing-discrimination statute quickly became a debate about the proper way to address racial disparities as U.S. 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. Supreme Court justices sparred with lawyers and among themselves over the statistical method for determining discrimination known as “disparate impact.” The case, Texas Dept. of Housing vs.

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. At issue in a case from Dallas, Texas, is whether the housing law authorizes lawsuits over racially neutral measures that nonetheless disproportionately impact minority residents. 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. The Inclusive Communities Project, represents a long-awaited test of disparate impact, which critics say allows the federal government — or allied non-profit groups like Inclusive Communities — to sue businesses and housing authorities for committing racial discrimination not because an identified person discriminated but because the racial outcome was skewed one way or another.

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. Liberals support the so-called disparate impact theory of civil rights enforcement, while conservatives warn that such an approach could lead to racial quotas in housing and other areas. 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. 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. On the other side, briefs have been filed by a number of conservative groups and business associations, including insurance companies, banks, finance companies, and home builders. 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.

The FHA prohibits anyone from refusing to sell, rent, or otherwise make unavailable a house or apartment to a person because of their race, religion, or national origin. 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. After the FHA was enacted in 1968, federal courts and agencies began embracing a broader interpretation of the law’s scope, concluding that, in addition to barring intentional discrimination, the statute also authorizes lawsuits when housing decisions disproportionately harm minority groups. 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. The case before the high court involves a lawsuit challenging decisions by the Texas Department of Housing and Community Affairs in awarding tax credits for low-income housing in Dallas. Instead of renewing neighborhoods, these tax-credit decisions have perpetuated segregation and deterred balanced development between northern and southern Dallas. But justices have allowed for exceptions, approving affirmative action plans and other race-conscious efforts that aid minorities. “Racial disparity is not racial discrimination.

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. 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 the government had held the same view since at least 1992 and added: “it overestimates the efficiency of the government to think that you could get, you know, a supposed rulemakling on an issue like this out within seven days.” Conservative opponents of disparate-impact analysis sensed weakness in the Obama administration’s position as it repeatedly tried to keep these cases from being heard before the nation’s highest court. The issue before the court is whether ICP must prove that state decision-makers’ intent was to segregate minorities or whether proving a discriminatory effect is adequate. The suit cited a statistical analysis that showed the agency approved disproportionately more applications for housing in minority neighborhoods than in more affluent white suburbs.

Congress amended Title VIII to add three exemptions from disparate-impact suits, strongly implying it considered all other violations to be fair game, Scalia said. “They make no sense unless there is such a thing as disparate impact,” he said. “It’s –they are prohibiting something that doesn’t exist, right?” Justice Sonia Sotomayor, perhaps the court’s strongest supporter of disparate-impact theory and other racial discrimination remedies like affirmative action, lectured Keller later on the purpose of the law and how it can’t affect private development, a major concern for business. This selection and allocation of low-income housing units in the Dallas area was the functional equivalent of intentional racial segregation, the group charged. Verrilli said such cases were outliers and said typical cases “in the heartland” such as zoning restrictions or occupancy rules are more straightforward. The trial judge ruled that the group had failed to show intentional discrimination but had proved that the way the credits were allocated had had a disparate impact on minority families.

A Supreme Court ruling supporting the state could allow authorities to restore outdated policies that effectively ensure perpetuation of segregated pockets of poverty. 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. In that case, the court ruled 5 to 4 that corporations and labor unions have a First Amendment right to spend money on issue advertisements during election season.

That led Roberts to ask whether it’s worse to provide housing in neighborhoods where it’s needed, at the risk of ghettoization, or to build it in affluent neighborhoods and risk being accused of avoiding minority residents. “You’ve got to know what you’re shooting at before you can tell if you’ve missed,” he said. “You say you look at what’s causing the bad effect, but what’s the bad effect?” Later, he asked if those two communities both got sued for racial discrimination and each argued their policies were actually helping minorities, could they both win? Employment law isn’t involved, and the long record of court approval of its use in housing discrimination argues against the court ruling for Texas.

The government argues certain practices, such as unnecessarily restrictive zoning, occupancy limits or ordinances that prohibit converting properties to rental units, can have a large racial impact and no compelling justification. But using statistics to “prove” racism can also drag companies and local governments into expensive litigation for no reason other than their numbers look bad.

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