Supreme Court: Fair Housing Act Bars Policies that Segregate, even if Segregation is not Intentional

In June, Supreme Court decisions on Obamacare and same-sex marriage overshadowed another important decision, this one on housing discrimination, confirming that the Fair Housing Act not only prohibits actions or policies that are intentionally bigoted, but also those that have the effect of disadvantaging minorities, even where no racist intent can be proven.

The decision, whose background and implications I have discussed in more detail for The American Prospect in “The Supreme Court’s Challenge to Housing Segregation,” was widely interpreted as a civil rights victory, but yesterday a New York Times editorial disagreed. Supreme Court experts on Scotusblog, the excellent independent journalistic enterprise devoted to covering the court and its decisions, had in the moments after the court’s opinion was handed down, also denied that the decision was an advance for civil rights. On closer examination, however, the Times/Scotusblog theory doesn’t hold up.

“This might seem to be a ‘liberal’ result”, the Times wrote, “except that 11 federal appeals courts had agreed on this reading for decades. There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.” The Scotusblog experts also noted that although Justice Kennedy’s majority opinion endorsed a prohibition on policies that have a discriminatory effect, it also described so many conditions required for proof of discriminatory effects that it seemed to make it more difficult to win cases where only such effects, not intent, have been proven. In sum, the argument went, the fact that this case was heard at all was a civil rights defeat–it is quite unusual for the court to take up a case where all lower courts are in agreement–and although the civil rights opponents lost the case, it gave these opponents tools to narrow, if not eviscerate, the power of the Fair Housing Act.

Justice Kennedy’s warnings about the narrow circumstances in which policies can be prohibited because of their effects, without provable intent, were generally warnings that were already present in appellate and previous Supreme Court decisions–for example, that a policy does not violate civil rights laws simply because there are statistical differences in how it impacts minorities; it also must be “arbitrary, artificial, and unnecessary”.

In important ways, Justice Kennedy’s opinion may have breathed life into the Fair Housing Law that the law had not previously possessed. The opinion did so by effectively acknowledging that the “Fair Housing Act” is a euphemism–it is not really about “fair” housing, whatever that may mean, but about desegregated housing, which is what the Act was intended to roll back when it was adopted in 1968.

Consider the case at issue, a suit brought by a Dallas civil rights group, The Inclusive Communities Project (ICP), showing that federal tax subsidies for low and moderate income housing in Dallas have the effect of reinforcing segregation because almost all of the developments built with such subsidies are located in already low-income minority neighborhoods. In one case, for example, there are eight such projects within a radius of less than a mile and a half of another pending project. As the website of attorneys representing the ICP shows, this neighborhood is “an industrially impacted area with declining total populations, rising poverty rates, increasing unemployment, diminishing or non-existent neighborhood facilities such as grocery stores, and high rates of criminal victimization.” Meanwhile, white neighborhoods in Dallas have no such concentration of federally subsidized projects. Indeed, most white neighborhoods have none at all.

Justice Kennedy ended his June opinion with this stirring call: “The Fair Housing Act must play an important part in avoiding the …grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white–separate and un-equal.’ The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”

This acknowledgment has been long in coming, and one that was completely unexpected from a ‘conservative’ justice. Was he moved by the national reaction to the white supremacist slaying of churchgoers in Charleston? Have the killings of black youth by police in segregated cities caused him to reconsider assumptions about how far we have come in overcoming our racial past?

In his opinion, Justice Kennedy referred to this past, noting that effects of 20th century government-sponsored (“de jure”) segregation endure without adequate remedy. For this, he cited a “friend of the court” brief, filed by the Economic Policy Institute and the Haas Institute for a Fair and Inclusive Society, on behalf of 61 scholars of housing and of the history of government-sponsored segregation. (I, and Stephen Menendian, assistant director of the Haas Institute, were among the signers.) In past Supreme Court decisions, liberal Justices Ginsburg and Breyer have argued that race-neutral policies can reinforce past governmental actions of discrimination and segregation, but for one of the court’s five conservatives to do so this explicitly is truly remarkable.

However, Justice Kennedy’s opinion did endorse previous court decisions that established difficult standards that civil rights complaints must meet to prove that segregation is reinforced by a facially benign policy. Thus, his decision will not by itself make a big practical difference in policy. For such a difference to occur, civil rights advocates and the Department of Housing and Urban development will have to combine the Supreme Court’s endorsement of an “effects” test with a provision of the Fair Housing Act that is also controversial and will also come under attack from opponents. That provision requires municipalities not only to avoid taking actions that have the effect of reinforcing segregation–the subject of Justice Kennedy’s opinion–but “affirmatively to further” fair housing, i.e., to take affirmative action to integrate. As I describe in “The Supreme Court’s Challenge to Housing Segregation” in The American Prospect, only by combining these two tools will we begin to take steps to desegregate metropolitan areas.