Symposium: The disparate-impact framework remains essential and effective

John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of the respondents in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc.

A fair and proper interpretation of the Fair Housing Act requires an understanding of the compelling reasons the Act was passed in the first place – and its necessity today. The historical perspective informs not only how the statute’s disparate-impact framework should be interpreted, but also which constitutional principles bear upon the Supreme Court’s analysis of Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The statute’s contemporary application demonstrates how the Act continues to fulfill its animating goals. Thus, there are two essential points to bear in mind. First, the Act is a response to an expansive system of racial residential segregation. Second, housing segregation has produced a lasting legacy of intertwined social and economic ills based on race that the Act continues to work to undo. Through careful burden shifting, the disparate-impact standard addresses both the direct vestiges of intentional housing discrimination, as well as the enduring disparities that such discrimination set in motion.

For decades, federal, state, and local governments proactively enforced and subsidized systemic de jure housing segregation using tactics such as racially restrictive covenants, divisive zoning, and redlining. In parts of Texas – the state from which this case hails – cities formally designated so-called “negro districts” and flagrantly reinforced racial divisions along those lines. Many of these official policies continued until the mid-1960s, influenced the conduct of private actors, and were only abolished after civil rights advocates successfully drew attention to the fact that segregation in housing – and elsewhere – inflicts a deep and lasting insult to the dignity of the humans it constrains. Indeed, Dr. Martin Luther King, Jr., eloquently lamented the “noiselessness and powerlessness” experienced by African Americans isolated in dilapidated housing and “island[s] of despair.” Just two days after Dr. King’s tragic assassination, President Lyndon B. Johnson extolled the “fundamental of human dignity” afforded by equal housing opportunity and exhorted Congress to pass the Fair Housing Act as a tribute to Dr. King. Less than a week later, Congress complied, enacting this critically important piece of legislation while deeply conscious of not only the dignitary concerns expressed by Dr. King and others, but also the extensive record detailing the genesis and evils of segregated housing.

Today, notwithstanding the considerable progress our nation has made towards racial equality since the passage of the Fair Housing Act, the unfortunate reality is that housing segregation persists. It is not a coincidence that many neighborhoods that were purposely zoned or subsidized exclusively for African Americans or whites several decades ago still reflect those same demographics today. This still-pervasive residential segregation imposes a wide array of socioeconomic harms, including in the areas of social and economic mobility, education, and public health. The financial damage is particularly acute: homes in minority, segregated regions have lower market values and are harder to sell, making it more difficult for African Americans to preserve wealth across generations and curtailing the physical and economic mobility of individuals, families, and neighborhoods. This tangle of interlocking ills has weighty repercussions for the self-determination of the individuals who live in such segregated neighborhoods and is hardly a paradigm of efficient markets and free choice. Instead, it constitutes a market distortion that is the consequence of distinct, long-standing and inherited segregative policies.

The Fair Housing Act and the disparate-impact framework in particular remain essential to addressing these grave problems. For four decades, the framework has proven indispensable, particularly for eradicating the de facto housing segregation that is fairly traceable to de jure policies overtly promoted by federal and state governments. Thus, for example, in jurisdictions that were intentionally segregated using facially race-based zoning ordinances, and remain segregated as intended, the passage of time often makes it difficult, if not impossible, to bring intentional discrimination claims. Documents are lost, decision-makers pass on, and the causal chain becomes less immediately apparent while the centripetal force of that malignant zoning decision persists. Such circumstances clearly demonstrate how the disparate-impact framework is crucial to erase the “grandfathered” effects of earlier, purposeful acts of discrimination.

In addition to being necessary to eliminate entrenched housing segregation, the disparate-impact standard offers a fair, effective, and administrable approach to protecting both public and private policies and practices that are necessary to achieve legitimate, nondiscriminatory objectives. Under the burden-shifting framework, plaintiffs at the prima facie stage bear the initial burden of offering evidentiary proof that “a challenged practice caused or predictably will cause a discriminatory effect.” Plaintiffs must also demonstrate a causal relationship between the disputed practice and the discriminatory effect. This standard by no means guarantees plaintiffs success at the prima facie stage. Courts can – and do – reject disparate-impact claims that fail to provide sufficient evidence. Even if plaintiffs successfully set forth a prima facie case of discrimination, liability does not attach unless the defendant fails to show that the disputed policy “is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.” If the defendant meets this second-stage burden, the framework proceeds to a third step, in which plaintiffs must demonstrate that the defendant’s interests “could be served by another practice that has a less discriminatory effect.”

Opponents of the disparate-impact standard decry it for supposedly assigning boundless liability whenever racial effects are not perfectly symmetrical. This mistakenly assumes that any assertion of racial asymmetry, no matter how far-fetched or weakly supported, will satisfy plaintiffs’ non-trivial burden of establishing a prima facie claim. But, as outlined above, that is simply not how the disparate-impact framework actually works. Opponents of the disparate-impact standard largely ignore the remaining two stages of the framework, whereby defendants can justify their conduct and plaintiffs face additional burdens of demonstrating a workable alternative. Furthermore, such opponents offer no explanation for how and why after forty years, the Fair Housing Act’s disparate-impact standard will suddenly wreak havoc. The real undercurrent of these arguments seems to be that some industries would benefit from deregulation. But even a strict textualist would acknowledge that is no basis for changing how the Act is interpreted.

Moreover, the Supreme Court can affirm the unanimous conclusion of all of the federal courts of appeals which have found that disparate-impact claims are cognizable under the Fair Housing Act – as well as the U.S. Department of Housing and Urban Development (“HUD”) regulation to the same effect – without running afoul of constitutional concerns. The Supreme Court has consistently presumed that compliance with presumptively valid federal antidiscrimination law is a compelling interest, a presumption that applies equally here. The Court has also repeatedly endorsed disparate-impact analysis without questioning its constitutionality. Even if the Justices feel the need to delve further, in the fair housing context, most remedies are race-neutral and, thus, do not trigger strict scrutiny. On the margins, any remedies that do employ race-conscious measures can be strictly scrutinized on a case-by-case basis. For example, commanding a defendant to discontinue a practice that perpetuates the effects of de jure segregation serves compelling governmental interests by remedying the vestiges of de jure discrimination. Other times, race-conscious remedies serve compelling interests by rooting out surreptitious or subtle forms of intentional discrimination. Although opponents of disparate impact focus on Justice Scalia’s concurrence in Ricci v. DeStefano, in which he speculated about potential tension between disparate impact and disparate treatment, the narrow-tailoring prong of strict scrutiny already builds in a means of fully and adequately addressing any possible tension based on the facts of a specific case. Additionally, the disparate-impact standard inherently considers narrow tailoring by factoring in less discriminatory alternatives.

Stare decisis and prudential considerations firmly counsel against the adoption of the state’s argument that the Court wrongly decided that disparate impact is permissible in completely different statutes, including Title VII and the Age Discrimination in Employment Act. To suddenly excise disparate-impact claims from the Fair Housing Act and other civil rights laws would fundamentally dismantle our nation’s civil rights architecture and rupture a half-century of consistent federal appellate interpretation of that Act as well as Title VII and the ADEA.

Ultimately, the Court need not undertake such an aberrant and perilous course. This case can and should be resolved on straightforward and obvious grounds. The Fair Housing Act, Title VII, and the ADEA – all of which were passed in quick succession between 1964 and 1968 – contain similar, effects-focused language: Title VII and the ADEA regarding practices that “otherwise adversely affect” employment status and the Fair Housing Act regarding practices that “otherwise make unavailable or deny” housing. Given the animating history of these statutes, as well as the common-sense principle that comparable language in proximate statutes should be construed similarly, it is not surprising that each statute has been repeatedly interpreted by courts as authorizing disparate-impact claims. At worst, the Act’s language is ambiguous, in which case, the consistent and long-held view of federal appellate courts – and the recent HUD regulation interpreting that phrase – are entitled to deference. As we enter a new year, planning to celebrate additional anniversaries of the civil rights movement, it is unfathomable to contemplate the wholesale elimination of a longstanding and valuable tool for challenging racial discrimination.

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