Supreme Court Fair Housing Decision Means More Than May Appear

Quite a morning at the Supreme Court last Thursday. As you all know, a six-member majority preserved affordable health insurance for low and moderate-income people — and not only the 6.4 million whose subsidies were at immediate risk, for reasons I explained.

The Court also, by the slimmest possible majority, ruled that the Fair Housing Act prohibits policies and practices that have a discriminatory effect, even if an intent to discriminate can’t be proved.

This is how the U.S. Department of Housing and Urban Development has interpreted the law — and how virtually all lower courts have interpreted it for 40 years, including all at the appellate level that have considered the issue.

But the ruling came as a pleasant surprise because advocates thought the Court wouldn’t have agreed to hear the case if it wasn’t likely to rule the interpretation over-broad.

The ruling removes a threat to HUD’s efforts to combat racial segregation, both the legacy of deliberately discriminatory policies and the effects of current policies and practices.

The just-decided case involved one of the latter — a local housing authority’s disproportionate awards of tax credits to developers with plans to locate low-cost housing in predominantly black inner-city neighborhoods.

The ruling will free HUD, from a legal standpoint, to issue a final version of its rule spelling out its responsibility — and thus the responsibility of state and local agencies — to “affirmatively further” equal housing opportunity, as the FHA requires.

This, in itself, has broader implications than the obvious because equal opportunities to rent and buy housing are closely linked to other opportunities — most, though not all related to advantages of living in a neighborhood where most fellow residents aren’t poor.

These include living closer to where a decent number of decent-paying jobs are available and/or to convenient public transportation, ready access to full-service grocery stores, better-funded — and therefore, generally better — nearby schools and less exposure to toxics in the environment, not to mention flying bullets.

They are all reasons that a plethora of research has found that place matters — including, as I wrote awhile ago, for children’s future prospects of moving up the income scale from the bottom fifth.

Now, it’s not only housing discrimination — intentional or otherwise — that tends to perpetuate income inequality and, with it, downright income insufficiency. We have ample evidence of discrimination in hiring, pay, promotions and the like.

We know that state and local funding for public schools can deny equal educational opportunities to children in high-poverty districts, which are often (though not always) predominantly black or Hispanic. And we’ve got evidence of what certainly seems to be discrimination in the way schools deal with students who’ve allegedly violated the rules.

Discrimination of these sorts affects not only racial and ethnic minorities, of course, but other groups our major federal civil rights laws are supposed to protect, e.g., women, people with disabilities, those whose religious beliefs and/or practices relegate them to minority status.

I’m off on what may seem an excursion because, as a lawyer-advocate friend of mine noted, the disparate impact (or effects) standard the Supreme Court upheld has also long been the basis for enforcement of the other laws.

What I, like many others said about fair housing applies equally to employment and to education, health care, social services, transportation and other programs that receive or benefit from federal funds.

You’re rarely, if ever going to be able to prove that a policy or practice has a greater negative impact on people who belong to a protected class because that’s what it was intended to do.

And indeed, some policies and practices with disparate impacts probably aren’t intentional, but rather “unconscious prejudices,” as Justice Kennedy, writing for the majority, said. Some, indeed, may not reflect prejudices at all, but a casual acceptance of the status quo, failures to think through consequences or not caring to address them.

Those policies and practices are nonetheless contrary to what Congress intended back in the days when it sought to level the playing field for people unjustly denied opportunities essential for upward mobility, personal well-being and full participation in our social and political institutions.

A decision for plaintiffs in the FHA case wouldn’t automatically have extended the overly-narrow intent standard throughout the fabric of our civil rights protections. But it would have given a new entering wedge to parties interested in constricting their reach.

So an altogether good Thursday at the Supreme Court. And as you all know, a great Friday too.

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