Up­hold­ing fair hous­ing

Los Angeles Times - - OPINION -

For years, civil rights groups have feared that the Supreme Court would ham­string the ef­fort to end racial seg­re­ga­tion in hous­ing by rul­ing that only prac­tices rooted in in­ten­tional dis­crim­i­na­tion vi­o­lated the Fair Hous­ing Act. But on Thurs­day, a 5- to- 4 ma­jor­ity rightly held that the land­mark law also pro­hibits some poli­cies that have the ef­fect of iso­lat­ing racial groups even when there is no de­lib­er­ate bias.

The de­ci­sion in­volves a law­suit by a non­profit hous­ing or­ga­ni­za­tion claim­ing that a state agency in Texas steered tax cred­its for the de­vel­op­ment of low- in­come hous­ing to black in­ner city neigh­bor­hoods in Dal­las. That pol­icy, ac­cord­ing to the plain­tiffs, even if wasn’t de­signed to seg­re­gate the races, nev­er­the­less had that ef­fect and was there­fore the “func­tional equiv­a­lent” of in­ten­tional racial seg­re­ga­tion — and thus vi­o­lated the Fair Hous­ing Act. The state agency coun­tered that the law didn’t au­tho­rize “dis­parate im­pact” law­suits.

The Supreme Court dis­agreed. Writ­ing for the ma­jor­ity, Jus­tice An­thony M. Kennedy placed the Fair Hous­ing Act in the con­text of other civil rights laws that al­low law­suits based on dis­parate im­pact, a con­cept enun­ci­ated by the Supreme Court in a 1971 de­ci­sion in­volv­ing em­ploy­ment dis­crim­i­na­tion and later rat­i­fied by Congress ( in­clud­ing in amend­ments to the Fair Hous­ing Act).

In em­ploy­ment cases, once a job test or other re­quire­ment has been shown to have a dis­pro­por­tion­ate out­come on work­ers of a par­tic­u­lar race, the bur­den shifts to the em­ployer to prove that the re­quire­ment is jo­bre­lated. Like­wise, Kennedy wrote, a show­ing of a racial dis­par­ity in a hous­ing pro­gram re­quires an agency or devel­oper to show that a par­tic­u­lar pol­icy ( such as steer­ing low- in­come hous­ing to a black in­ner city neigh­bor­hood) is nec­es­sary to serve a “valid in­ter­est.” Of­ten, Kennedy sug­gested, that bur­den will be met. He left open the pos­si­bil­ity that a lower court might con­clude that the tax­credit pro­gram in Texas was rea­son­able.

The de­ci­sion pre­serves a valu­able tool for rem­e­dy­ing seg­re­ga­tion. Kennedy rec­og­nized that it’s naive to be­lieve all hous­ing seg­re­ga­tion can be at­trib­uted to con­scious bias. Rather, he said, the ves­tiges of legally man­dated seg­re­ga­tion re­main “in­ter­twined with the coun­try’s eco­nomic and so­cial life.”

Too of­ten, con­ser­va­tives on and off the court are blind to the sub­tler man­i­fes­ta­tions of dis­crim­i­na­tion that per­pet­u­ate racial in­jus­tice and iso­la­tion. In his dis­sent in this case, Jus­tice Clarence Thomas com­plained: “In their quest to erad­i­cate what they view as in­sti­tu­tion­al­ized dis­crim­i­na­tion, dis­parateim­pact pro­po­nents doggedly as­sume that a given racial dis­par­ity at an in­sti­tu­tion is a prod­uct of that in­sti­tu­tion rather than a re­flec­tion of dis­par­i­ties that ex­ist out­side of it.”

But in­sti­tu­tion­al­ized dis­crim­i­na­tion isn’t a fig­ment of lib­er­als’ imag­i­na­tion. It’s a re­al­ity that ob­structs the achieve­ment of the “color- blind” so­ci­ety con­ser­va­tives pro­fess to de­sire. Dis­man­tling such dis­crim­i­na­tion is a le­git­i­mate pur­pose of civil rights laws, in­clud­ing the Fair Hous­ing Act. The court was wise to rec­og­nize that fact.

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