Supreme Court to Gut Housing Discrimination Laws?

The Supreme Court has already essentially gutted the Voting Rights Act. Will it now do the same for the Fair Housing Act, which provides legal protection against housing discrimination? They’ve just granted cert in a case and Ian Millhiser reports that a federal judge has just given them the roadmap to do so.

According to nearly every single federal appeals court in the country, the federal Fair Housing Act prohibits two forms of discrimination: “disparate treatment,” which can be proved by showing that a realtor, landlord or lender engaged in intentional discrimination, and “disparate impact,” which can be proved when a business’ policy leads to disproportionately adverse outcomes for racial minorities or for another protected class of people. As Judge Leon’s opinion acknowledges, 11 of the 12 federal appeals courts that have jurisdiction over fair housing claims have held that the law authorizes both disparate treatment and disparate impact lawsuits. The twelfth appeals court, the United States Court of Appeals for the District of Columbia Circuit, has not considered whether disparate impact lawsuits are permitted under federal fair housing law.

Without disparate impact suits, discrimination cases become extraordinarily difficult to win. Fair housing plaintiffs and their lawyers are rarely gifted with the ability to read minds, and few defendants are foolish enough to put in writing the fact that they chose not to rent or sell a house to someone because they are black. So disparate treatment lawsuits often fail for a lack of evidence that a particular defendant had a racist intent (or some other impermissible intent) when they decided not to do business with the plaintiff.

But the fact that racist intent is difficult to prove does not mean that discrimination does not exist. According to a study conducted on behalf of the U.S. Department of Housing and Urban Development, African Americans and Asians who are looking for a new home are shown or informed of 15 to 19 percent fewer listings than white homebuyers with similar credit and housing interests. Similarly, African Americans with good credit were 3.5 times as likely as whites with similar credit to receive higher-interest-rate loans during the subprime lending boom. Latinos were 3.1 more likely than whites to receive the same loans. The Federal Reserve determined in 2009 that African Americans were twice as likely to be denied a loan as similarly situated whites.

So housing discrimination is widespread, even if it is difficult to prove without disparate impact litigation. Nevertheless, Judge Leon’s opinion does not simply reject the idea that eleven federal appeals courts were correct when they held that disparate impact lawsuits are authorized by federal fair housing law (to reach this result, he reads a 2005 Supreme Court opinion aggressively to limit disparate impact litigation); Leon also practically sneers at the Obama Administration for promulgating a regulation consistent with eleven appeals courts’ decisions. At one point, he accuses the Department of Housing and Urban Development of “calculatingly” creating this regulation in an attempt to influence a Supreme Court case seeking to undermine disparate impact lawsuits.

That third paragraph is the key to this issue. If the Supreme Court follows Judge Leon and does away with disparate impact suits, it will mean that the only basis for such a suit is to prove actual racist intent on the part of a realtor, landlord or mortgage provider. But a vast number of psychological studies tell us that there need not be any such racist intent in order to have a clearly racist result. The people in those studies likely show very little overt racism and may in fact be consciously committed to not being racist, but we know from study after study that they can still treat people very differently based on their race because our biases are largely subconscious. That’s why disparate impact is so important here. And I have no confidence at all that the current Supreme Court will even attempt to understand that.

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What Are Your Thoughts?leave a comment
  • http://www.gregory-gadow.net Gregory in Seattle

    I wonder what it is like, to live in an enlightened, civilized country. I really wouldn’t know.

  • tbp1

    I suspect the conservative majority will entirely understand it, but just not care (although they won’t put it that way).

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    Gregory,

    go back 40 years.

    Even NIXON was better than the current crop of Republicans………

  • Holms

    …the federal Fair Housing Act prohibits two forms of discrimination: “disparate treatment,” which can be proved by showing that a realtor, landlord or lender engaged in intentional discrimination, and “disparate impact,” which can be proved when a business’ policy leads to disproportionately adverse outcomes for racial minorities or for another protected class of people.

    Isn’t this just a pointlessly longwinded way of saying that it prohibits discrimination that is either intentional or unintentional? Goddamn lawyers.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Don’t worry. I’ve got this problem solved. Minorities, Inc. If anything, it’ll get them more rights. Even imaginary ones that they don’t need, shouldn’t have, that exempt them from the consequences of their actions and that make the lives of those around them worse. It’s sure to be a hit with at least 4/9ths of the Supreme Court. Plus, Kennedy’s a squish.

     

    See? All the Left needs to defeat the Right is to become the Right. I’m told that the dull ache I felt after thinking of it was just the tattered remains of my soul stretching my insides in a final, panicked attempt to flee the dark, empty husk of me.

  • D. C. Sessions

    Even NIXON was better than the current crop of Republicans………

    Nixon was a RINO. And before you say that Reagan and Bush41 were better, they were RINOs too.

  • Chiroptera

    The Supreme Court has already essentially gutted the Voting Rights Act. Will it now do the same for the Fair Housing Act, which provides legal protection against housing discrimination?

    Why not? In 21st century America, wealthy white Catholics don’t have a problem finding housing. So what exactly is the problem here?

  • malta

    @5, Holms:

    Unintentional vs. intentional discrimination is one way to look at it, but “disparate impact” is more about capturing how actions can have a disproportionate impact because of the structure of society. For example, people of color are much more likely to live near coal plants. The company executives probably didn’t get together and say “hey let’s stick this plant near those [racist slurs]” but because people of color are poorer on average and the country is filled with segregated communities that’s what ended up happening regardless of what anyone intended. Disparate impact is supposed to make people step back and think about structural racism, so I can see why the Supreme Court hates it.