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The Supreme Court’s next assault on protections against discrimination: housing

The United States Supreme Court
The United States Supreme Court
Mark Wilson/Getty Images

Right now, courts treat housing discrimination as a statistical question: if the plaintiffs can prove, with raw data, that a housing policy has a disproportionately negative effect on racial minorities or other protected groups, then it's discriminatory and against the law.

But a case on the Supreme Court's docket for its next term could change that, forcing plaintiffs to prove that the defendants wrote the policy intending to discriminate — a much tougher bar to clear.

The Court announced Thursday that it will hear Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., in which the state is challenging a federal appeals court decision that ruled its actions violated the Fair Housing Act's (FHA) prohibition against discrimination.

The question the Supreme Court will consider is this: can people who complain of housing discrimination continue to win their cases by using statistics showing the effect of the policies — a tactic known as the disparate impact theory that's been a staple of fair housing law — or will they have to do something much more difficult and prove that defendants intended to discriminate?

The disparate impact theory is key to fighting housing discrimination

Suburban residential street

(Elena Elisseeeva/Shutterstock)

Because the disparate impact theory gives lawyers the ability to win cases by showing evidence of housing policies' unfair effects (regardless of their intent),  it's been a cornerstone of the fight against housing discrimination under the Fair Housing Act, which was designed to address the stark, racist housing discrimination that was pervasive throughout the country in the 1960s.

Although it looks different now, housing discrimination remains a major problem. The National Fair Housing Alliance estimates that more than 3.7 million Americans each year are victims of housing discrimination. Think Progress points to a study by the Department of Housing and Urban Development showing black and Asian potential homebuyers were shown 15-19 percent fewer homes than similarly qualified whites. A Center for American Progress/La Raza round-up of the evidence on housing discrimination reports that blacks with good credit scores were 3.5 times as likely as their white counterparts to receive higher-interest-rate loans, and, as recently as 2009, African Americans were twice as likely to be denied a home loan.

The NAACP, ACLU, and Lawyers Committee for Civil Rights each have divisions dedicated to combatting housing discrimination, and there are more than 220 fair housing organizations dedicated to battling this insidious phenomenon.  The Department of Justice Civil Rights Division is even involved, bringing suits on behalf of the United States to enforce the FHA.

But if the Supreme Court decides to make proof of intent a requirement to win housing discrimination cases, it would essentially gut enforcement of the FHA. This would be a setback for civil rights, just like the Supreme Court's June 2013 decision in Shelby County v. Holder to remove Section 5 of the Voting Rights Act dealt a major blow to the main tool used to combat racial discrimination in voting.

The court is likely to strike down disparate impact

Housing projects in the United States

(trekandshoot/Shutterstock)

Stacy Seicshnaydre, associate professor of law at Tulane University and former executive director and general counsel of the Greater New Orleans Fair Housing Action Center, said the simple fact that the Court has chosen to hear this case means the justices are likely to decide that proof of discriminatory intent is required in housing discrimination cases. That's an outlook echoed by court-watchers who have interpreted the five-justice majority's "eagerness to review an issue on which all lower courts have agreed, and its hostility to the Voting Rights Act, affirmative action, and other means for rooting out racial discrimination" as a sign that they're willing to do away with the disparate impact theory.

As is often the case on the Court, Justice Anthony Kennedy might be a wild card. While skeptical of race-conscious remedies in generally, he has indicated that he believes that racial segregation is a problem. Because disparate impact is mostly used in cases involving racial segregation in housing, there's a small chance, Seicshnaydre said, that he might hesitate to eliminate the legal theory best designed to fight it.

But there's no getting around the fact that if the Court does decide to change the ways housing discrimination can be proved, lawyers who represent the interests of minorities will likely face an enormous setback.

"I shudder to think, if it's been this difficult to eradicate racial segregation with [the disparate impact theory], how we would fare without it," Seicshnaydre said. In some cases, a specific intent to discriminate on the part of defendants would be tough to prove. In others, it simply might not exist, and the case would be impossible to win.

So what could housing advocates do if the Court does rule against them? One theory is that civil rights lawyers would need to get creative and work to expand the definition of "intent."

"There are some academics and theorists who have suggested that we have not done as much work to try to develop a more robust theory of intent, because we've relied to heavily on disparate impact," Seichshanydre said.

That would mean getting inside the heads of people accused of housing discrimination, which could actually turn out to be tough on defendants, too. Lawyers attempting to prove housing discrimination with limited legal tools would be forced to engage more often in what Seichshanydre calls an "unseemly conversation" about any scrap of evidence that defendants' had discriminatory intentions — something that, up until now, they haven't had to get into. And that's not a conversation most people would enjoy being at the center of.

"It would be tragic to have to go back to a proof regime where we could only focus on evil hearts and evil minds," she says. "That's a result that some of the people opposed to disparate impact might regret. After all, who wants to be accused of intentional racial discrimination?"

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