Thursday, June 25, 2015

Supreme Court Upholds a Critical Tool in the Struggle for Inclusive Communities

by William Berman and Jamie Langowski, Suffolk Law School Housing Discrimination Testing Program, guest contributors

Obviously, it is illegal for a white home seller to refuse to sell to a black home buyer in a private transaction because of race.  Obvious, perhaps, but both the 13th Amendment and Civil Rights Act of 1866 were on the books for over one hundred years before the Supreme Court confirmed this in its ruling in Jones v. Meyer in 1968.  Now, after almost a half a century the Supreme Court has ruled 5-4 that disparate impact theory is cognizable under the Fair Housing Act to prohibit practices that have a discriminatory effect on a protected class of people, regardless of intent.  The Court based its ruling on: the results-oriented language of the FHA; interpretation of similar language in Title VII and the ADEA; Congress’s confirmation of its understanding of the existence of disparate impact liability in the substance of its 1988 amendments to the FHA; the unanimous view of nine Courts of Appeals; and, last but certainly not least, the statutory purpose of the Act itself.  

While it took almost 50 years for this issue to reach the Supreme Court, for much of the history of the Fair Housing Act the application of disparate impact was not in doubt.  It was the Supreme Court itself that first read disparate impact into Title VII of the Civil Rights Act of 1964 in Griggs v. Duke Power Co., in 1974.  Not long after that, circuit courts interpreted the Fair Housing Act as supporting disparate impact claims.  After all, the purpose of the statute is broadly defined (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”), discriminatory intent in housing is often difficult to prove, and disparate impact provides a tool to combat larger scale discriminatory actions that have the effect of having a disproportionately negative impact on a protected class. 

This Nation has not been particularly good at acknowledging its discriminatory past.  The current debate about the Confederate flag, 150 years later, is just the latest example of this.  There are disturbing parallels between the unrest of the late 60’s in Watts, Detroit, and Newark, and the recent unrest in Ferguson, Cleveland & Baltimore.  There is a similar parallel between the racial terror of the Selma church bombings and the recent murders in the Emanuel African Methodist Episcopal Church in Charleston.  The promise of the Fair Housing Act remains unfulfilled.  According to a 2010 Brown University study of census data, black – white segregation has declined only marginally since its peak in the 1960’s and 70’s.  A simple internet search for dot density maps related to racial segregation provides a colorful visual of just how segregated many of our major cities are (Detroit, Chicago, Birmingham, Washington D.C.).  Studies show negative effects from living in racially segregated neighborhoods, including poorer health, education and economic outcomes.  Unfortunately, more than ever, this nation must combat institutional racism and long held patterns of segregation.  

The Supreme Court’s historic ruling that disparate impact theory is cognizable under the Fair Housing Act leaves one such tool intact. There is cautioning language in the opinion suggesting a potential narrowing the application of disparate impact.  This is of concern to civil rights advocates and its effect will play out over time.  But as Justice Kennedy stated in the majority opinion, “Much progress remains to be made in our Nation’s continuing struggle against racial isolation.” That, unfortunately, is an understatement.  The ruling was much less about interpreting single words and phrases in a half century old Civil Rights statute as it was about whether the court was willing to take us one giant leap backward in interpreting a law that it took the death of our nation’s greatest civil rights leader to pass. 

The fight that Dr. King began is not over.  At least now advocates need not fight it with one hand tied behind their backs.

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