Roger Clegg of the Center for Equal Opportunity explains in a National Review Online column why it’s time for the U.S. Supreme Court to take on the problem of “disparate impact” arguments.
It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin.
Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She makes this decision for obvious reasons, namely that such criminals are unreliable tenants and that their presence makes it harder to rent other units and more likely that current tenants will decide to leave. She does not adopt this policy because she thinks it will disproportionately exclude members of this or that racial or ethnic group — indeed, she is completely unaware of what demographic impact it will have — and she applies it evenhandedly, without regard to skin color or national origin. What’s more, she can prove all this in court.
Can she nonetheless be liable for racial discrimination if her policy turns out to exclude members of some racial groups more frequently than members of other racial groups?
The Obama administration says yes — and the Supreme Court will determine in the Texas case if that’s right. In the meantime, a federal district court has said no, and struck down the administration’s regulations to the contrary.
In the administration’s view, and according to those regulations, which were issued by the Department of Housing and Urban Development, if a policy has this sort of “disparate impact,” as it is called, then that’s enough to make the landlord liable. So she must then prove — to the satisfaction of the HUD bureaucrats, a federal judge, or a jury — that there is some high degree of “necessity” providing “legally sufficient justification” for her policy.
And even if she shows this necessity, she can still lose if the government (or a civil-rights plaintiff) persuades the judge or jury that there was some other policy she could have followed that would have been practically as good and would not have resulted in those bad numbers.
The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation.
