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Saturday, March 1, 2014

"Where Wall Street Meets C Street: Reimagining Civil Rights Enforcement of Large Financial Institutions"

The title of this post comes from this recent paper arguing that the failures of the Equal Credit Opportunity Act's and the Fair Housing Act's enforcement structures make them ripe for reconsideration and modification. Here's the abstract: 

There are persistent disparities in access to credit by racial and ethnic minorities, including both the total denial of credit and the extension of credit on inferior terms than those given to other individuals with comparable credit qualifications. While there is significant normative agreement that such discrimination is wrong, that agreement fractures over the attendant issues of how widespread such discrimination is and how to design and implement an enforcement structure that addresses discrimination based on the economic realities of lending by financial institutions. Thus far, the major civil rights statutes governing discrimination in access to credit, the Equal Credit Opportunity Act and the Fair Housing Act, have proven ineffective at both deterring such discrimination and in holding financial institutions accountable for violations. This paper sets out to re-consider the societal and economic costs of such discrimination, and to propose another system of enforcement informed by the securities and banking laws that emphasizes increasing transparency, frontline enforcement, and greater accountability for violations.

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March 1, 2014 in Fair Housing Act | Permalink | Comments (0)

Wednesday, December 25, 2013

Federal Court Revives Fair-Housing Issue

The title of this post comes from this article in the Wall Street Journal highlighting yet another case in which the question is whether disparate impact claims are cognizable under the Fair Housing Act. The article begins:

HudimgA case in Washington, D.C., federal court has revived a dispute about the reach of U.S. fair-housing law, an issue that has twice surfaced at the Supreme Court only to disappear from the docket because of settlements.


U.S. District Judge Richard Leon on Friday restarted a suit by two trade associations challenging a Department of Housing and Urban Development regulation issued in February.


The regulation explicitly allows "disparate-impact" claims, in which plaintiffs use the civil-rights-era Fair Housing Act to challenge practices that affect minorities disproportionately, without having to prove intentional discrimination. Advocates say such suits help protect minority rights.


The American Insurance Association and the National Association of Mutual Insurance Companies are challenging the rule, saying the Fair Housing Act "prohibits only intentional discrimination and not practices that result in a disparate impact." The groups contend the HUD rule would disrupt how insurers determine rates for homeowners' policies.


The Supreme Court was scheduled this fall to hear arguments on the issue, but town officials in Mount Holly, N.J., reached a deal with residents who had fileda disparate-impact suit in response to plans to redevelop a largely minority neighborhood.

Also on CRL&P: Settlement in Fair Housing Case—A Sigh of Relief

December 25, 2013 in Fair Housing Act | Permalink | Comments (0)

Monday, December 2, 2013

CRL&P Daily Reads: Dec. 2, 2013

Monday, November 18, 2013

Settlement in Fair Housing Case—A Sigh of Relief

This is a guest post written by Professor Valerie Schneider.*

Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s—the Fair Housing Act.

In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act.  Each of these cases –first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc. – settled just weeks before oral arguments were scheduled.

Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place.  This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred.   Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race.  What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.

One thing that is important to keep in mind is that the question before the Supreme Court in both Gallagher and Mt. Holly was whether disparate impact claims are cognizable under the Fair Housing Act—that is, the Supreme Court was to decide whether plaintiffs who have been harmed by practices with discriminatory effects can get through the courtroom door.  In order to actually prevail in their cases, such plaintiffs have the heavy burden of proving, among other things, that there was a less discriminatory means by which the defendant could have accomplished its goals.  Disparate impact analysis is no slam dunk for plaintiffs, but it is critical to ensuring that the Fair Housing Act lives up to its name—i.e. that it ensures fairness.

As noted in the amicus brief submitted in the Mt. Holly case by Howard University School of Law’s Fair Housing and Civil Rights Clinics, no one is suggesting that “disparate impact analysis should prohibit municipalities from achieving legitimate redevelopment goals; but it does arm communities of color with one small tool of protection when there is a clear means to achieve that legitimate goal in a way that would be less disastrous to the very communities that the Fair Housing Act was designed to protect.”

As the debate about disparate impact under the Fair Housing Act continues (and it is not unlikely that the Supreme Court will agree to hear yet another similar case), it is important to remember what is at stake.  After hundreds of years of legal discrimination based on race, communities protected by the Fair Housing Act need a tool to combat the much more subtle forms of discrimination that persist today—disparate impact analysis is that tool.

ACSblog posted Professor Schneider's piece on Nov. 14, 2013.

* Valerie Schneider is Assistant Professor of Law at Howard University School of Law where she supervises the Fair Housing Clinic.

November 18, 2013 in Fair Housing Act | Permalink | Comments (2)