WASHINGTON – The Supreme Court ruled Thursday in a narrow vote that unintentionally discriminatory policies or practices are illegal.
The justices affirmed the opinion of the 5th U.S. Circuit Court of Appeals in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The ruling allows for disparate impact, a legal term describing the racially biased effects of seemingly neutral policies.
The ruling, on 5-4 vote, came as a surprise for many who thought the conservative justices took the case so they could reverse the appellate court’s ruling. The lower courts had consistently upheld disparate impact as a legal doctrine, meaning it was not a typical case for the court.
While the decision upholds disparate impact claims, it also comes with some limitations.
In the majority opinion written by Justice Anthony M. Kennedy, the justices said that the claims are important because they allow people a method to “counteract unconscious prejudices.” But the justices also warned that the expanding the claims could infringe on the power of local housing authorities and force them to impost racial quotas to avoid a lawsuit.
To avoid this effect, the justices said that groups suing based on disparate impact have to show the policy is directly causing a disparity based on race, and the housing authorities have to be given a fair chance to prove the policies serve a substantial interest.
The dissenting justices, Clarence Thomas, Antonin Scalia, Samuel A. Alito and Chief Justice John G. Roberts Jr., argued that disparate impact claims are not supported by the law, saying that only explicit discrimination is illegal under the Fair Housing Act and the Constitution. Thomas joined Alito’s dissenting opinion and wrote an additional dissenting opinion.
Tim Irvine, the executive director of the Texas Department of Housing and Community Affairs, said that, while the agency wanted a different outcome, it is ready to defend its policies under new ruling. The case was sent back to the lower court so it could re-evaluate housing policies.
“We are fully prepared to return to the trial court to make our case that there has, in fact, been no actionable disparate impact discrimination by TDHCA under the clarified standards set out by the Court in their opinion,” he said in a statement. “TDHCA remains committed to its mission of providing affordable housing options to low-income Texans.”
The Inclusive Communities Project, a Dallas-based fair housing advocacy organization, supported Kennedy’s opinion, saying it shows the intent of the Fair Housing Act: eliminating racial segregation.
“The opinion pointed out that, despite progress, those conditions continue to blight our country,” the organization said in a statement. “Justice Kennedy was clear that in addition to eliminating barriers that kept minorities out of White neighborhoods, local governments must also address the harm of unequal conditions of slum and blight imposed by racial segregation.”
The White House said in a statement that the decision will help eliminate “subtle forms of discrimination.”
“This decision reflects the reality that discrimination often operates not just out in the open, but in more hidden forms. And, it preserves a longstanding and important method for challenging and eliminating those practices and continuing the work to end discrimination in housing,” the statement said.
Julián Castro, secretary of the Department of Housing and Urban Development, released a statement saying the ruling is a step in the right direction.
“The Supreme Court has made it clear that HUD can continue to use this critical tool to eliminate the unfair barriers that have deferred and derailed too many dreams.” he said. “We will continue to do all we can to build a housing market that treats all Americans with basic dignity and respect.”
The Texas branch of the NAACP cheered the decision, saying it will make future litigation for individual property owners easier and require policies with disparate impact to be justified.
“Frequently, we find that neutral criteria on their face are known in their execution to have a disparate impact on minorities seeking homes or residences,” the statement said. “This is a great victory.”
The case, brought in 2008, claimed the Texas state housing agency was violating the Fair Housing Act in its use of tax credits for affordable housing. The Inclusive Communities Project claimed the agency favored developers who put low-income housing in high-poverty, predominately black neighborhoods. Civil rights advocates argue this practice reinforces segregation because many of the recipients of affordable housing were African American.
Because disparate impact is based on unintentional effects, the Inclusive Communities Project did not have to prove that the housing agency was acting based on race. It needed only to prove that the results disproportionately affected African Americans.
That forced Texas to try to prove the tax credit system was not race-based and served another purpose.
Reach reporter Jaelynn Grisso at [email protected] or (202) 408-1493. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire. Like the Scripps Howard Foundation Wire interns on Facebook and follow us on Twitter.
Download photos: Texas-housing.zip