Civil Rights Law & Policy Blog

"The Racist Housing Policies That Built Ferguson"

The Atlantic's Ta-Nehisi Coates explains in this recent post. 

SCOTUS's review of disparate impact theory under FHA cause for concern for theory's proponents?

Nearly a year ago, Howard University School of Law Professor Valerie Schneider wrote this excellent guest post on the importance of disparate impact theory to the prevention of racial discrimination under the Fair Housing Act (FHA). SCOTUS was set to consider “whether acts that…have a disproportionate negative impact on minority communities” are actionable under FHA -- in Township of Mt. Holly v. Mt. Holly Gardens.* But the case settled at the eleventh hour, thereby depriving SCOTUS of its opportunity to address the issue. At the time, Schneider wrote:  

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 the debate about disparate impact under the Fair Housing Act continues (and ), 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.

Schneider also thought it "not unlikely that the Supreme Court will agree to hear yet another similar case." She proved right. Last week, SCOTUS granted cert in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. At issue is the distribution by the city of Dallas of low-income housing tax credits to white and black neighborhoods, which opponents claim have the effect of perpetuating racial segregation within the city. 

Slate's Jamelle Bouie explains why many believe SCOTUS will seriously curtail current fair housing standards by ruling disparate impact theory unconstitutional. He writes:

Another way to understand disparate impact is this: It’s a way to confront the realities of racial inequality without trying to prove the motivations of an institution, organization, or landlord. In housing especially, it’s rare to get someone as explicit about his discrimination as Donald Sterling. More often, you must look for patterns of unequal results or unfair treatment that stem from “objective” or “neutral” criteria.

 

[...]

 

But it’s also controversial, with opponents who see it as subversive to equal protection... [I]n his concurrence in Ricci v. DeStefano—an affirmative action case—Justice Antonin Scalia swings at the doctrine, calling disparate impact provisions in employment practices a “racial thumb on the scales” that forces discriminatory “racial decisionmaking.”

 

Scalia and the conservative bloc of the Supreme Court are hostile to almost all race-conscious policies...and want to end disparate impact as a federal tool... 

 

With the latest case, a settlement is unlikely. The court will hear disparate impact, and most likely—following Chief Justice John Roberts’ infamous declaration that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—end it.

Related posts:

• "Where Wall Street Meets C Street: Reimagining Civil Rights Enforcement of Large Financial Institutions"
• Federal Court Revives Fair-Housing Issue
• Settlement in Fair Housing Case—A Sigh of Relief

* For an in-depth look at Mt. Holly township and the potential impact of SCOTUS’s rejection of disparate impact theory under the FHA, read then-MSNBC reporter Adam Serwer’s excellent account here. 

"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.

CRL&P related posts:

• Settlement in Fair Housing Case—A Sigh of Relief
• Formalism and Employer Liability Under Title VII
• HUD finds Dallas discriminates against minorities in affordable-housing practices

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:

A 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

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

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.