By S. E. Williams, Staff Writer
Supreme Court Upholds Disparate Impact Provision Of Fair Housing Act , But Weakens Its Application
Civil Rights supporters held a collective breath on Thursday, June 25 as the Supreme Court revealed its ruling on the application of disparate impact under the provisions of the Fair Housing Act.
Many observers were uncertain about the outcome of the case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., as the conservative leaning Supreme Court has run hot and cold—though mostly cold, on important civil rights and discrimination related issues in recent years.
The Texas case was initially filed by a nonprofit group, the Inclusive Communities Project (ICP). In its complaint it claimed the Texas Department of Housing and Community Affairs allegedly contributed to segregated housing patterns by allocating too many tax credits to housing in predominantly black, inner-city areas and too few in predominantly white suburban neighborhoods. The District Court agreed.
Finally, by a margin of five to four and to the relief of many observers, the Supreme Court largely upheld the disparate impact theory in alignment with the District Court ruling. According to the majority justices, such disparate-impact claims are consistent with the Federal Housing Administration’s (FHA) central purpose of ending discriminatory practices in housing. The justices defined such discriminatory practices as zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.
The ruling brought certainty to an issue that for far too long lingered in ambiguity and although two cases had previously tested the premise of disparate impact both were ultimately settled out of fear of defeat before the nation’s highest court. Apparently, with what is now considered by many to be a more conservative leaning Supreme Court; and, in light of its recent rulings that weighed against civil rights related legislation, the Texas Department of Housing and Community Affairs felt the time was right to seek a favorable ruling against the theory.
In their majority ruling the justices relied on a 1988 congressional amendment to the Fair Housing Act. The justices held that at the time congress made its amendment, “all nine Courts of Appeals had addressed the question [of disparate impact] and concluded the Fair Housing Act encompassed disparate impact claims. It followed that since congress was aware of the unanimous precedent by the nine Appeals Courts; and, made a considered judgment to retain the relevant statute—the majority Supreme Court Justices felt justified in their conclusion that congress therefore accepted and ratified the holdings of the Courts of Appeals that the Fair Housing Act encompassed disparate impact claims.
The promise offered by the disparate impact theory is that it allows a plaintiff to establish liability without having to prove intentional discrimination when the outcome of a particular business practice has a disproportionate effect on certain groups of individuals; and, when the practice in question is not rooted in sound business considerations.
Title VIII of the 1968 Civil Rights Act, The Fair Housing Act, established federal enforcement measures and made it illegal to refuse to sell or rent a dwelling to any person because of race, color, religion, sex or national origin.
Although the recent Supreme Court ruling upheld the basic provisions of the disparate impact portion of the Fair Housing Act it also afforded protections to potential defendants in such cases from what it described as abusive, disparate impact claims.
To this end, the court held that a racial imbalance requires more than data to sustain a claim of disparate impact. As a result, it directed lower courts to carefully examine all claims of disparate impact at the pleadings stage of the judicial process.
The court also stressed how the burden rests solidly with the plaintiff to establish what it identified as a “robust” connection between the practice being challenged and the alleged disparities.
In addition, many believe the court provided added wiggle room for defendants to shield their actions by ruling that unless a defendant’s justification for action is considered artificial, arbitrary or unnecessary it is not contrary to the disparate impact requirement.
Finally, the court determined that orders to remedy a disparate impact violation must be focused on the elimination of the practice in question through means that are considered race-neutral.
In light of these constraints many observers view the Supreme Court ruling on the Fair Housing Act as a somewhat hollow victory. Although disparate impact was retained as a viable theory it is apparent that most of the majority ruling focused on building a protective bubble around defendants by firstly asking lower courts to rule out frivolous suits; secondly, by stressing the burden of proof required by plaintiffs to support their allegation; thirdly, establishing a litmus test of whether a practice is artificial, arbitrary or unnecessary when a defendant’s policy justification is questioned; and, in instances where the defendant is found to be in violation of the theory, assuring the remedies are race neutral.
In an exclusive interview with The Voice, Monica Lopez, Program Manager, Fair Housing Council of Riverside County shared that the Supreme Court ruling will not trigger much change in how the Riverside agency operates. She stressed there are ways to create policy that are not discriminatory.
The Fair Housing Council of Riverside County, Inc. is a nonprofit, HUD (Housing and Urban Development) approved organization that fights to protect the housing rights of all individuals.
According to Lopez every five years housing agencies work with municipalities to make their housing policies more specific. The goal is to find ways for local governments to achieve their housing goals by putting everyone together to discuss needs in the community, and to identify and work to end any issues related to segregation.
When asked how Fair Housing initiatives can ever end segregation when people naturally choose to live in neighborhoods where they feel comfortable and accepted. Lopez acknowledged that while many make a conscious choice to do so, other factors contribute to this as well. “Certainly people are more comfortable living in a community they belong to but often people choose a neighborhood because of its affordability based on their income.”
“Our goal,” she shared, “is to make people comfortable in all neighborhoods and there are ways this can be done.” According to Lopez the Fair Housing Council of Riverside has a lot of inclusive events to help facilitate this reality. “We are finding different ways to connect with the community and bring everyone together to assure equal access to everything from housing to health care to employment,” she shared.
For more information on programs and services offered by the Fair Housing Council of Riverside visit www.fairhousing.net.