by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Over the past four decades, U.S. courts have ruled that plaintiffs making discrimination claims under the Fair Housing Act don’t have to prove intentional bias.
Civil rights advocates simply have to show that lenders, insurers, developers or government agencies acted in ways that had a “disparate,” or unequal, impact on minority groups.
Now, the Supreme Court is weighing whether to hear an appeal from Texas officials who argue that intent to discriminate must be proven and that the “disparate impact” standard is too loose an interpretation of the landmark 1968 law that prohibited discrimination in housing.
Advocates on both sides say the court’s record under Chief Justice John Roberts, who has engineered a rollback of decades-old protections for racial minorities, suggests the majority is poised to wipe out the standard, Bloomberg Businessweek reports in its Sept. 29-Oct. 5 issue.
“Some justices have certainly hinted that that’s problematic,” said Todd Gaziano, a fellow at the conservative Pacific Legal Foundation, which supports Texas’s position.
Texas is fighting a lawsuit filed by a group that advocates for affordable housing and integration.
Using the disparate impact standard, the Inclusive Communities Project says the Texas Department of Housing and Community Affairs pushed black residents eligible for housing assistance into poor Dallas neighborhoods. They did that by allocating a disproportionately high number of low-income tax credits to properties in those areas rather than to housing in wealthier, and typically whiter, neighborhoods, the group says.
Texas, which says the program wasn’t intended to be biased, appealed to the Supreme Court after lower courts let the Inclusive Communities Project make a disparate impact argument in the case.
A ruling in Texas’s favor could wipe out disparate impact arguments in cases involving other federal statutes.