The Other Case: Victory For Fair Housing

Ken AshfordConstitution, Race, Supreme CourtLeave a Comment

It won’t get as much press, but the Supreme Court decision in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., is arguably as important as the Obamacare case.

The 5-4 ruling (PDF) found that the housing policies could be deemed discriminatory based on “disparate impact.” This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory.  That’s the way it has always been, but a bad decision today could have meant that plaintiffs would have to prove discrimination by showing a motive — a specific intent to discriminate.  In the absence of someone publicly admitting they are racist, this is very difficult — if not impossible — to prove. The impact would have been to essentially gut the Fair Housing Act of 1968.

While some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

So, another good win today.