The Supreme Court may be on the cusp of
another dramatic weakening of civil rights laws:
The question before the court is whether the Fair Housing Act of 1968, intended to fight pervasive residential segregation, bans practices that unintentionally discriminate against minorities. For decades, the law has been used not only to fight intentional discrimination but any other practices that have a "disparate impact" on racial and other minority groups. [...]
But now, the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., represents the third time in as many years that the Supreme Court has agreed to take up the issue of how broadly, or not, the Fair Housing Act rules can be applied. Less than four years ago, the court agreed to hear a case out of Minnesota on disparate-impact claims; the following year it agreed to take up a New Jersey case on the same issue. Both cases were resolved before oral arguments, in part because civil rights advocates were afraid of what the Supreme Court under Chief Justice John Roberts might decide.
"There’s no disagreement among the lower courts, it’s always been the law since the late '60s that you could have disparate impact," says Deepak Gupta, a Washington lawyer who filed an amicus brief on behalf of current and former members of Congress urging the court to uphold the broad interpretation of the housing law. The court's taking up the issue repeatedly, Gupta says, signals that "at least some of the justices are very interested in changing the law in this area."
One of those justices appears to be Chief Justice John Roberts himself, whose questioning in oral arguments today demonstrated skepticism toward the last forty years of established law. Hope for retaining the notion that housing discrimination can still be discrimination even if it is not explicit and intentional may lie, ironically, with Antonin Scalia. His theoretical devotion to deferring to agency interpretations of laws when possible may come into play; oral arguments today gave no clear signs that he had
made up his mind.
Scalia told [Texas Solicitor General Scott Keller] that looking at the "grand goals" of Congress in 1968 to eliminate segregated housing, it seemed possible that lawmakers thought disparate impact cases were acceptable. But later, Scalia told Michael Daniel, lawyer for the Texas housing group, that "racial disparity is not racial discrimination."
"The fact that the NFL is largely black players is not discrimination," Scalia said.
So we'll see. Gutting the legal notion of discrimination via "disparate impact" would have broad civil rights implications, if the court went that far. Given that Roberts himself appears to be openly contemplating such a change, there's reason to be nervous.