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Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent

Valerie Schneider is an Assistant Professor at Howard University School of Law.

Today’s opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project left intact over forty years of fair housing jurisprudence in which eleven circuits have assumed or decided that disparate impact claims are cognizable under the Fair Housing Act. Though, as both the Court and scholars have acknowledged, disparate impact claims are hard to win, disparate impact liability remains an important tool for combating discriminatory housing decisions where race-based intent is absent.

The Inclusive Communities Project brought suit over how the Texas Department of Housing and Community Affairs distributes tax credits for low-income housing. The Department’s policy, the group claimed, causes almost all affordable units to be built in racially segregated low-income areas, providing minorities with few opportunities to move to integrated or wealthier areas. Though the creators of the tax credit policy had no racial intent, according to the Inclusive Communities Project the results of the policy confined minorities to segregated areas.

Importantly, today’s opinion, like some lower court opinions, acknowledges that decision makers may need to consider race in some circumstances in order to ensure compliance with the Fair Housing Act. Towards the end of its decision, the Court notes that remedial orders in disparate impact cases should be designed, where possible, to eliminate racial disparities through race-neutral means. That said, to eliminate the disparate impact of some housing policies, the Court acknowledges, “race may be considered in certain circumstances.” Mere awareness of race in attempting to address the ills of racial segregation does not, according to the Court “doom that endeavor at the outset.”

This acknowledgement – that some degree of racial awareness may be required to remedy policies that have a discriminatory disparate impact based on race – puts to rest concerns that the Court would declare disparate impact analysis unconstitutional under the Fourteenth Amendment. It also reflects the basic reality of our day. Without analyzing current patterns of segregation, how can municipalities implement policies that avoid disparate impacts? Without acknowledging the racial impacts of decisions, how can courts implement remedies that have a realistic chance of addressing insidious disparate impacts where they exist? The Court recognized today that in order to effectuate the broad purpose of the Fair Housing Act, we cannot simply close our eyes to the racial impacts of seemingly race-neutral decisions.

In the area of housing, more, perhaps, than in any other area, governmentally sanctioned racism drives our current reality. Through federal loan policies, local discriminatory zoning practices, court-enforced racially restrictive covenants, and other methods, the United States government created ghettos and then confined African Americans to those areas. We constructed this country on a faulty foundation of racism, and the hard-won civil rights laws of the 1960s and 1970s, including the Fair Housing Act, were aimed at repairing the structure of our society.   Today’s decision acknowledges that all of tools the Fair Housing Act provides are required to repair that foundation.

The decision, of course, is not a total win for fair housing advocates. It contains a number of warnings to would-be litigants and to lower courts. Kennedy notes, for example, that the type of facts presented by this case are disfavored because, according to Kennedy, such cases put courts in the uncomfortable position of second-guessing housing authorities’ policy decisions.   Under the facts of the current case, Kennedy worries that the housing authority could be subject to disparate impact liability whether it chose to place its affordable units in wealthy suburbs or in the inner city. In contrast, suits targeting “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without sufficient justification” Kennedy writes, reside at the “heartland” of disparate impact jurisprudence.

Despite Kennedy’s cautions to litigants and lower courts, today’s decision is good news for Fair Housing advocates and for the Fair Housing Act itself. With disparate impact jurisprudence generally intact, we can continue the work that the framers of the Fair Housing Act demanded in the preamble to the Act: to provide, within constitutional limitations, for fair housing throughout the United States. Much work remains to be done.





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