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Supreme Court may scale back housing discrimination law
WASHINGTON — Two days after celebrating Martin Luther King Jr.'s birth, the Supreme Court will consider weakening a federal housing discrimination law passed in the wake of his death.
The showdown over the Fair Housing Act of 1968 has been anticipated for several years — eagerly by conservatives who say the law has gone too far, anxiously by civil rights groups who fear it will be rolled back.
The facts of the case — involving a decision by Dallas officials to make most federal low-income housing vouchers available in poor, minority neighborhoods — are less important than the potential nationwide impact. If the court rules as expected, housing discrimination cases would be tougher to win from coast to coast.
Two earlier housing discrimination lawsuits from Minnesota and New Jersey were withdrawn or settled just before reaching the high court — in one case at the urging of the Obama administration, which is aligned with the civil rights community. They fear what most court-watchers predict: that five justices are poised to weaken the law, just as they did the Voting Rights Act in 2013.
The lending industry, on the other hand, presses its argument that the law has been misinterpreted for decades to penalize practices that have a disparate effect on minority groups, even if unintentional. That has forced them to settle lawsuits at considerable expense.
At issue is whether the law requires blacks and other minorities to prove intentional racial discrimination in sales, rentals, zoning or lending practices, or whether a policy's disparate impact is enough to make it illegal.
That difference between intent and impact is at the root of many civil rights laws, from education and employment to disability and voting rights. In most cases, showing that minorities are disproportionately affected is enough. In this case, developers, bankers, insurers and others note, the housing law does not refer to disparate impact.
COURT ACTIVE ON CIVIL RIGHTS
The Supreme Court's desire to hear the opponents' case — and very possibly rule in their favor — has been clear for years. The justices reached out to consider the two previous cases, as well as the current one from Texas, even though federal appeals courts have ruled consistently that showing a discriminatory impact is sufficient.
"The question has to be asked: Why is the court taking this case?" says Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund. "I don't think we can kid ourselves that the court is not aggressively interested in this issue."
For good reason, says Andrew Sandler, who represents many of the nation's leading banks and financial services companies in legal battles with federal and state agencies. Using the current interpretation, he says, lenders can be sued successfully based on the statistical results of their policies.
"I think this is going to advance civil rights enforcement by eliminating the overly aggressive cases," Sandler says. "The issue is just how far they go."
Under Chief Justice John Roberts, the court has not been reluctant to scale back civil rights laws.
In a case in 2005 involving the Age Discrimination in Employment Act, it ruled that a provision making it illegal to "refuse" to hire someone because of age required discriminatory intent, while a separate section making it unlawful to "adversely affect" someone could be based on impact. The Fair Housing Act uses words such as "refuse" and "deny."
In 2013, Roberts penned the 5-4 decision striking down a key section of the Voting Rights Act, which had required states and localities with a history of discrimination to get federal approval before making changes in their voting laws.
"Our country has changed," Roberts said. "While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."
A JUSTICE FROM PUBLIC HOUSING
By last year, when the court ruled that Michigan voters had the right to ban racial preferences in university admissions, Justice Sonia Sotomayor had heard enough. "We ought not sit back and wish away, rather than confront, the racial inequality that exists in our society," she said in a blistering, 58-page dissent.
As the product of public housing, Sotomayor will be closely watched at Wednesday's oral argument and in the court's ruling, likely by late June.
Conservative groups — about a dozen of which wrote to the court expressing their views — say the law must be reinterpreted to avoid having public officials base housing policies on skin color.
"The Supreme Court should reject this distorted reading of the Fair Housing Act and promote policymaking that's based on competence and common sense, not color-coding and quotas," says Ralph Kasarda, a lawyer with the Pacific Legal Foundation.
Civil rights advocates say the need for housing integration is more fundamental than education and jobs, which often stem from where a person lives. Nearly two dozen briefs have been filed with the court on behalf of the Inclusive Communities Project, the Dallas challengers.
"Housing lies at the fulcrum of civil rights," says John Relman of the National Fair Housing Alliance. "Where you live affects the opportunities that you have for jobs, for better schools."