Jus­tices af­firm Fair Hous­ing Act

Supreme Court ma­jor­ity finds dis­crim­i­na­tion can oc­cur even with­out overt bias.

Los Angeles Times - - THE NATION - By Ti­mothy M. Phelps and David G. Sav­age tim. phelps@ latimes. com david. sav­age@ latimes. com

WASHINGTON — The Supreme Court handed a rare vic­tory to civil rights ad­vo­cates Thurs­day, en­dors­ing a broad in­ter­pre­ta­tion of a land­mark 1960s- era law that for­bids racial dis­crim­i­na­tion in hous­ing.

In a 5- 4 de­ci­sion that at times re­called the rhetoric of the lib­eral War­ren court, Jus­tice An­thony M. Kennedy and the court’s lib­eral jus­tices agreed that the 1968 Fair Hous­ing Act cov­ers dis­crim­i­na­tion re­gard­less of whether it was caused by in­ten­tional and bla­tant racial bias.

The law­suit chal­lenged the con­struc­tion of low- in­come hous­ing pre­dom­i­nantly in in­ner- city mi­nor­ity neigh­bor­hoods in Dal­las rather than in white sub­urbs.

The jus­tices said that un­der the law, dis­crim­i­na­tion can be shown even when there is no overt bias but when sta­tis­tics prove that a par­tic­u­lar prac­tice or pol­icy has had a “dis­parate im­pact” on mi­nori­ties.

The de­ci­sion was hailed by civil rights ad­vo­cates as one that could f in­ally undo decades of racial seg­re­ga­tion.

“What is true in the Dal­las area is true in ev­ery area of the coun­try, which is that gov­ern­ment prac­tices con­fine peo­ple of color to un­der­served, vi­o­lent neigh­bor­hoods with ter­ri­ble schools where there are no jobs,” said Florence Ro­is­man, a hous­ing law ex­pert who is on the board of the com­mu­nity group that brought the chal­lenge. “It’s past time for that to stop.”

Iron­i­cally, the Obama ad­min­is­tra­tion and many of the civil rights groups that hailed Thurs­day’s de­ci­sion had gone to great lengths to pre­vent the case from reach­ing the high court.

La­bor Sec­re­tary Thomas E. Perez, when he was the top civil rights of­fi­cial in the Jus­tice Depart­ment, bro­kered a deal for St. Paul, Minn., to drop a 2011 Supreme Court ap­peal be­cause the Obama ad­min­is­tra­tion feared it would re­sult in an un­fa­vor­able rul­ing. When a sim­i­lar case came be­fore the court two years later, it too was dropped out of con­cern that con­ser­va­tive Supreme Court jus­tices might strike down “dis­parate im­pact” claims en­tirely.

The de­ci­sion was a de­feat for the mort­gage bank­ing in­dus­try. Sev­eral ma­jor banks had been sued by the Obama ad­min­is­tra­tion for lend­ing prac­tices that had a dis­crim­i­na­tory ef­fect on racial mi­nori­ties.

In his opin­ion, Kennedy pointed out that the Fair Hous­ing Act was passed by Congress in re­sponse to the as­sas­si­na­tion of the Rev. Martin Luther King Jr. in 1968 and the so­cial un­rest that fol­lowed.

“Much progress re­mains to be made in our na­tion’s con­tin­u­ing strug­gle against racial iso­la­tion,” Kennedy said. He was joined by Jus­tices Ruth Bader Gins­burg, Stephen G. Breyer, Elena Ka­gan and So­nia So­tomayor.

The Fair Hous­ing Act “must play an im­por­tant part in avoid­ing the ... grim prophecy that ‘ our na­tion is mov­ing to­ward two so­ci­eties, one black, one white — sep­a­rate and un­equal,’ ” Kennedy wrote. “The court ac­knowl­edges the Fair Hous­ing Act’s con­tin­u­ing role in mov­ing the na­tion to­ward a more in­te­grated so­ci­ety.”

Jus­tice Clarence Thomas, the court’s only African Amer­i­can and a for­mer chair­man of the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, which en­forces civil rights laws, wrote in dis­sent that the ma­jor­ity opin­ion was based on false as­sump­tions.

“As best I can tell, the rea­son for this whole­sale in­ver­sion of our law’s usual ap­proach is the un­stated — and un­sub­stan­ti­ated — as­sump­tion that, in the ab­sence of dis­crim­i­na­tion, an in­sti­tu­tion’s racial makeup would mir­ror that of so­ci­ety,” Thomas wrote.

“But the ab­sence of racial dis­par­i­ties in mul­ti­eth­nic so­ci­eties has been the ex­cep­tion, not the rule,” Thomas said. “To pre­sume that these and all other mea­sur­able dis­par­i­ties are prod­ucts of racial dis­crim­i­na­tion is to ig­nore the com­plex­i­ties of hu- man ex­is­tence.”

In a sep­a­rate dis­sent, joined by Thomas, Chief Jus­tice John G. Roberts Jr. and Jus­tices An­tonin Scalia and Sa­muel A. Al­ito Jr. ar­gued that the Fair Hous­ing Act “pro­hibits only dis­parate treat­ment, not dis­parate im­pact.”

He warned that the de­ci­sion could have “un­for­tu­nate con­se­quences,” be­cause “even a city’s good­faith at­tempt to rem­edy de­plorable hous­ing con­di­tions can be branded dis­crim­i­na­tory.”

Roger Clegg of the con- ser­va­tive Cen­ter for Equal Op­por­tu­nity in Vir­ginia had a sim­i­lar re­ac­tion. “The court’s de­ci­sion is dis­ap­point­ing,” he said in a state­ment. “It fails to fol­low the clear lan­guage of the statute, and it will en­cour­age race- based de­ci­sion- mak­ing in the hous­ing area — ex­actly what the Fair Hous­ing Act was meant to pro­hibit.”

The act ‘ must play an im­por­tant part in avoid­ing the ... grim prophecy that “our na­tion is mov­ing to­ward two so­ci­eties, one black, one white — sep­a­rate and un­equal.” ’

— Jus­tice An­thony M. Kennedy

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