In a 5-4 decision Thursday, the U.S. Supreme Court upheld a ruling by the Fifth Circuit Court of Appeals saying federal law bars not only intentional discrimination against minorities in housing but also "disparate impact." The majority opinion in the case of
Texas Department of Housing and Community Affairs v. Inclusive Communities Project
was written by Justice Anthony Kennedy. The ruling is widely viewed as a major civil rights victory.
Under Title VIII of the Civil Rights Act of 1968, known as the Fair Housing Act, it is unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” But there has long been a question about whether the language of the law also permits the filing of lawsuits based on disparate-impact. Such suits are launched on the ground that a law or policy has a discriminatory impact, even if it wasn't specifically adopted for discriminatory reasons.
The Texas case marked the third time the Court has accepted the matter for review, but the two previous cases had been settled before oral arguments were made. From Albert Salazar:
At issue in this particular case were tax subsidies granted by the State of Texas to build low-income housing developments. Inclusive Communities, a Dallas-based non-profit that works to place low-income Texans in affordable housing located in the city's more wealthy and white suburbs, claimed that the distribution of the state's subsidies encouraged housing segregation. The subsides encouraged affordable housing development in low-incomes and racially segregated neighborhoods.
Valerie Schneider, assistant professor at Howard University School of Law, wrote this as part of a symposium at SCOTUSBlog
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. [...]
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.
Both developers and housing authorities have argued that allowing disparate-impact claims costs them money and undercuts the provision of affordable housing in a timely fashion. They also claim they are forced to be race-conscious in making decisions in order to avoid lawsuits.