Supreme Court Weighs Disparate Impact in Texas Fair Housing Case

This article discusses the Supreme Court case Texas Department of Housing and Community Affairs versus Inclusive Communities Project, which addresses racial discrimination in housing. It delves into the interpretation of the Fair Housing Act and the broader implications of the Supreme Court's stance on race-conscious remedies.

Supreme Court to Hear Same-Sex Marriage Case

The Supreme Court has announced it will hear one of the same-sex marriage cases. Oral arguments are expected in March or April, with a decision likely by the end of June.

Racial Discrimination in Housing: Texas Department of Housing and Community Affairs v. Inclusive Communities Project

This case is not a constitutional challenge but rather concerns statutory interpretation of the Fair Housing Act. However, it carries significant constitutional overtones and potential implications.

The Fair Housing Act of 1968

The Fair Housing Act, passed in 1968, was a landmark piece of civil rights legislation. It prohibits racial discrimination in housing, including buying, selling, and renting.

The Challenge of Proving Intentional Discrimination

A major difficulty in enforcing the Fair Housing Act is proving intentional racial discrimination. It is hard to ascertain a person's discriminatory intent, and individuals rarely admit to such motives. This makes it challenging for victims to prevail in court, even when discrimination has occurred.

The Disparate Impact Standard

To address this challenge, courts have widely interpreted the Fair Housing Act to include a "disparate impact" standard. This standard means that instead of proving discriminatory intent, it is sufficient to show that a landlord or seller's actions disproportionately harm or burden racial minorities. While more complex in detail, the essence is that actions with a discriminatory effect can be deemed illegal, even if intent is not proven. This standard allows for catching subtle forms of discrimination, though it may also impact those who did not intend to discriminate.

Texas's Argument

The Texas Department of Housing and Community Affairs argues that the Fair Housing Act does not adopt a disparate impact standard and instead requires proof of deliberate racial discrimination. This interpretation has been rejected by nearly every lower court for over 45 years.

Why Texas's Argument is Significant

Texas's argument, despite its historical rejection, is not a guaranteed loss. This is due to the current Supreme Court's demonstrated skepticism towards government actions that consider race, even to combat racial inequalities.

The Supreme Court's Recent Record on Race-Conscious Remedies

Over the past decade, the Supreme Court has consistently limited the government's ability to use race-conscious measures to address racial inequality:

• 2003, Gratz v. Bollinger: Ruled that public universities cannot use race-based affirmative action programs that assign a fixed number of extra points for minority backgrounds. However, it did uphold programs using race in a more holistic manner.
• 2007, Parents Involved v. Seattle School District No. 1: Struck down voluntary desegregation efforts where students were assigned to schools based on race to achieve diversity.
• 2006 and 2008: Limited the scope of the Voting Rights Act, which had been used to ensure opportunities for racial minorities to elect candidates of their choice.
• 2009: Limited the ability of towns and cities to use race-conscious measures to remedy unintentional racial inequalities in public employment.
• 2013, Shelby County v. Holder: Struck down the pre-clearance provision of the Voting Rights Act, which required states with histories of racial discrimination to obtain federal approval before changing voting laws.

In these cases, the government used race to remedy past discrimination and achieve diversity. The Roberts Court has shown a clear disfavor for laws that allow the government to consider race, even when the purpose is to alleviate racial inequality rather than perpetuate discrimination.

Arguments Against Race-Conscious Remedies

Opponents of these laws make several arguments:

1. Constitutional Scope: They argue that because the Constitution only prohibits intentional racial discrimination, the government's power to prohibit discrimination is limited to intentional acts, not unintentional ones.
2. Government Discrimination: They sometimes claim that the disparate impact standard forces the government to engage in discrimination by requiring it to focus on race.

While these are constitutional arguments and the current case is statutory, these constitutional considerations heavily influence the debate over the Fair Housing Act's meaning.

Previous Attempts to Avoid Supreme Court Review

On two prior occasions, the Supreme Court agreed to hear cases raising the identical issue of disparate impact under the Fair Housing Act. Both times, the cases were settled before a decision could be reached. This was largely due to efforts by the Obama administration and civil rights organizations to prevent the Court from potentially limiting or striking down the Act. This time, however, the case reached the Supreme Court.

Justice Scalia's Stance

During oral arguments, Justice Scalia, known for his skepticism towards broad governmental efforts to remedy racial inequality, suggested that the Fair Housing Act was clearly intended to use a disparate impact standard. While this initially offered hope to supporters of the Act, those familiar with his views interpreted it ominously. It is feared that his willingness to acknowledge the disparate impact standard in the Act might be a prelude to striking down the entire statute on constitutional grounds, an outcome greatly feared by the civil rights community given the Court's recent record.

Professor Amar's Perspective

Professor Amar would likely agree that, as a statutory matter, the Fair Housing Act employs a disparate impact standard. The core question for him would be whether the Constitution permits Congress to use disparate impact to remedy racial discrimination. His answer would be an unequivocal "yes."

The Fourteenth Amendment and Congressional Power

Professor Amar would point to Section 5 of the 14th Amendment, which states that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." He would argue:

• "Appropriate" Language: The word "appropriate" is similar to "necessary and proper" in Article 1, Section 8, which grants Congress broad power. Textually, "appropriate" might even be more permissive.
• McCulloch v. Maryland: The term "appropriate" mirrors the language used in McCulloch v. Maryland, a landmark Supreme Court case decided before the 14th Amendment. In McCulloch, the Court upheld Congress's broad authority to use effective means to achieve its constitutional ends, as long as those means do not violate constitutional prohibitions.
• Drafters' Intent: The drafters of the 14th Amendment, familiar with McCulloch, intended to grant Congress broad power to legislate and protect the rights of racial minorities.
• Broad Interpretation: Congress's power to enforce civil rights should be interpreted broadly, in a "McCulloch-like spirit," rather than narrowly.
• Targeting Intentional Discrimination: While the Constitution itself may only prohibit intentional racial discrimination, using the disparate impact standard in legislation allows Congress to more effectively target and eradicate the intentional racial discrimination that does violate the Constitution.

For Professor Amar, the effectiveness of disparate impact as a tool to combat racial discrimination in housing would be sufficient justification for its constitutionality.