Supreme Court asked to scale back landmark fair housing law

22 Jan 2015 | Author: | No comments yet »

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Washington — A sharply divided US Supreme Court on Wednesday took up a challenge to the Fair Housing Act (FHA) in an action that liberal critics say could gut the major civil rights provision. WASHINGTON — The Obama administration may need the vote of a frequent conservative antagonist on the Supreme Court to preserve a decades-old strategy for fighting housing discrimination.WASHINGTON—The Supreme Court divided into ideological camps Wednesday as it considered whether fair-housing lawsuits can proceed against practices that allegedly promote racial segregation even without proof of intentional discrimination.

Re: “Time to play fair in housing — Supreme Court’s decision in Dallas racial discrimination case could be landmark, says Craig Flournoy,” Tuesday Viewpoints. 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. Every day our members work to eliminate housing discrimination and make their residences available to all, without regard to race, color, national origin, religion, sex, family status or disability. Based on the one-hour oral argument, it is not clear whether there is a conservative majority on the nine-justice court that will cut back on what kind of conduct can lead to housing discrimination litigation. 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.

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 court’s four liberals, in contrast, appeared convinced disparate-impact suits, a feature of fair-housing enforcement for decades, were justified by legal precedent and practical realities of the housing market. Exposing housing providers to expensive and unnecessary litigation due to disparate-impact claims hinders our industry’s ability to provide quality, safe housing. Most significantly, the reliably conservative Justice Antonin Scalia made some remarks supportive of the argument made by President Barack Obama’s administration and civil rights groups in defence of the broad interpretation of the law.

The court is considering whether the 1968 law allows racial and other bias claims based on seemingly neutral practices that may have a discriminatory effect. 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. Scalia said Congress seemed to have such lawsuits in mind when it passed the law in the 1960s, and later amendments in 1988, to eliminate segregation in housing. “I find it hard to read those two together in any other way than there is such a thing as disparate impact,” Scalia told Texas Solicitor General Scott Keller. 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.

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. 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.

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. Failure to bar disparate-impact claims would impose severe consequences — unintended by Congress — to the detriment of property owners and residents. The latest case involves an appeal from officials accused of awarding federal housing tax credits in a way that steered low-income housing to mostly poor, black neighborhoods in Dallas and generally kept the units out of wealthier white enclaves.

The group alleged that agency policies were keeping Dallas neighborhoods segregated and denying blacks a chance to move into safer neighborhoods with better schools. 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. This selection and allocation of low-income housing units in the Dallas area was the functional equivalent of intentional racial segregation, the group charged.

Solicitor General Donald Verrilli argued that disparate-impact suits discourage practices that harm minorities without justification, such as apartment-occupancy limits that disproportionately affect ethnic groups with large families. “The remedy there is going to be either no occupancy restriction or a looser occupancy restriction,” he said. “No one gets classified by race, no one gets a burden imposed upon them by race, and no one gets a benefit because of race.” Mr. Verrilli said such cases were outliers and said typical cases “in the heartland” such as zoning restrictions or occupancy rules are more straightforward. At least five protesters shouted out various slogans, including, “One person, one vote” and “We are the 99 percent.” Court security officers restrained them and quickly ushered them out of the courtroom. And the 1988 amendments, which made it clear that there could not be disparate-impact analysis with respect to certain matters, surely didn’t expand the scope of what was initially enacted,” Justice Alito said. 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.

Justice Stephen Breyer noted that every appeals court to consider the question for the past 40 years has found disparate impact acceptable in the housing context. And he conceded several times that the underlying allegation in the Texas case might not be a valid disparate-impact claim. “But which [one] counts [when] you are trying to see if there’s a disparate impact on minorities?” the chief justice asked.

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