Fair Housing Decision to Hurt Poor

Disparate impact lawsuits will delay housing construction

Supreme Court
• June 27, 2015 5:00 am


The Supreme Court ruled Thursday that racist intent is not necessary to prove accusations of racism in housing.

The court ruled 5-4 in an opinion written by Justice Anthony Kennedy, a Republican appointee, that the disparate impact doctrine could be applied to the Fair Housing Act. The case rested on whether Texas officials could be found liable for building low income housing in minority-centric areas rather than wealthier suburbs where the population is more likely to be white.

Kennedy ruled that plaintiffs could use demographic tests to prove that housing project locations are inherently racist.

"[FHA] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment," Kennedy ruled.

Amy Wax, a University of Pennsylvania law professor and disparate impact expert, said that the ruling could end up hurting the poor residents it is intended to help. If disparate impact is used to determine whether low-income housing belongs in poorer neighborhoods or wealthier suburbs, it could hamper the ability to efficiently build such housing anywhere.

"It will almost certainly result in a lot of worthy low income projects being held up indefinitely," she said in a phone interview with the Washington Free Beacon. "On one hand you’re trying to integrate [communities], on the other hand there’s going to be backlogs and long waiting lists."

A dissent authored by Justice Clarence Thomas, the court’s only African-American justice, said that the court’s opinion injects racial considerations into all housing decisions.

Thomas questioned the foundation of the disparate impact legal theory, which was established by the court in Griggs v. Duke Power Electric (1971). That decision extended a congressional ban on hiring discrimination to include standards that, while in and of themselves neutral, caused minorities to lose out on jobs at a higher rate than white applicants.

"The foundation on which the Court builds its latest disparate-impact regime…is made of sand," Thomas wrote. "That decision … represents the triumph of an agency’s preferences over Congress’ enactment and of assumption over fact. Whatever respect Griggs merits as a matter of stare decisis, I would not amplify its error by importing its disparate-impact scheme into yet another statute."

Wax said that the housing decision was "unfortunate," given the fact that disparate impact is not mentioned in the FHA legislation.

"We’re substituting the courts for the give and take of legislating," she said.

Kennedy said that the disparate impact test achieves the legislative goal of fostering integration in housing and reversing historical trends of segregation and racism.

"Disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping," the ruling says.

The decision will take effect immediately.

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