HOW HARD should it be to fight discriminatory housing practices? A lot harder than it is now, the state of Texas argued before the Supreme Court on Wednesday. Many of the justices didn’t appear to buy it — and they shouldn’t.
“Housing segregation,” commentator Ta-Nehisi Coates wrote last year, “is the weapon that mortally injures but does not bruise.” Not as dramatic as the water hoses and billy clubs infamously used against civil rights campaigners, government housing policy was a weapon used on a wider scale, depriving millions of people across the country of the simple freedom to choose where to live. Government had plenty of help and encouragement from developers and property owners who found ways to stop minorities from renting in their apartment buildings or moving in next door, methods often subtler than the racial zoning or racial covenants that openly segregated U.S. cities.
Congress fought back in 1968 with the Fair Housing Act. Under that law, appellate courts subsequently and unanimously concluded, housing discrimination lawsuits can succeed if they show that someone meant to discriminate — or if someone’s actions had a disparate impact on minorities without good reason. Texas, however, disputes that long-standing interpretation, claiming that Congress never meant for disparate impacts to result in legal liability. Aggrieved parties, in other words, should have to prove discriminatory intent. That would make it much more difficult for housing discrimination claims to succeed than in decades of legal practice, particularly when discriminatory policies are shadowy.
Justice Stephen G. Breyer made one case against overturning the established legal scheme: “Why should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people, has not produced disaster . . . on the basis of a text that was passed many years ago and is ambiguous at best?”
But Justice Antonin Scalia made the key point, based in the act’s history. Congress revisited the law in 1988, adding portions that presupposed that disparate impact was a proper standard under the law. “Doesn’t that kill your case?” he asked. We think so.
The justices might nevertheless split closely on whether consideration of effects, rather than solely intent, might lead to improper consideration of race — by, say, well-meaning local housing authorities who feel pressure to tailor their policies to avoid disparate impacts. Might they end up effectively promoting racial housing quotas or something equally unattractive?
No, Solicitor General Donald B. Verrilli Jr. replied, that is not the inevitable result. If they have a good reason to establish a policy that has disparate impacts, they won’t be in trouble. If they don’t have a good reason, all the law requires is for them to create a race-neutral policy that doesn’t have the same troubling effects. Courts, meanwhile, can sort out whether any particular remedy for improper housing policy is itself improperly based on racial considerations.
We don’t buy overheated warnings from some quarters that those on Texas’s side want to reestablish wholesale housing discrimination practices, or that removing the disparate-impact standard would fuel another financial crisis. But the Supreme Court shouldn’t wholly foreclose a long-established and well-justified legal procedure that continues to serve Congress’s original purpose: stamping out the horrid legacy of housing discrimination.
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