The Supreme Court's Disastrous Misreading Of The Fair Housing Act
A decision endorsing 'disparate impact' analysis will turn a law meant to prohibit discrimination into a vehicle for race-conscious housing decisions.
Last week, on the day before the Supreme Court blessed a legal doctrine that equates racial disparities with racial discrimination, the New York Times published an op-ed that illustrated the potential ramifications of the court's wrongheaded ruling.
The op-ed, “Is Special Education Racist?,” was written by professors of education Paul Morgan and George Farkas. They argued that the overrepresentation of black children receiving special-education services was best explained by factors other than racial bias. Black children are much more likely than white children, for example, to have been born prematurely, to suffer from fetal alcohol syndrome, and to have high levels of lead in their blood—all of which can contribute to learning disabilities and speech impairments.
“If well-intentioned but misguided advocates succeed in arbitrarily limiting placement in special education based on racial demographics, even more black children with disabilities will miss out on beneficial services,” wrote the authors. “The last thing we need is to compound these widespread disparities in disability diagnosis and treatment by making school officials reluctant to refer black children for special-education eligibility evaluations out of fear of being labeled racially biased.”
Last week's Supreme Court decision in Texas Department of Housing v. Inclusive Communities Project also could compound disparities in the name of reducing them. The case concerned federal housing law, but its impact will be felt in countless other areas. The Fair Housing Act of 1968 makes it unlawful “to refuse to sell or rent . . . or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” As Congress wrote the law, a plaintiff must show that there was intent to discriminate.
Yet if we've learned anything from the just-completed Supreme Court term, it is that words mean whatever well-intentioned but misguided advocates in robes say they mean. The text of the Affordable Care Act that clearly limits subsidies to exchanges “established by the State” can be extended by a majority of the court to include exchanges established by the federal government. The text of a housing law clearly written to punish only intentional discrimination can be rewritten by judges to punish practices that have a disproportionate impact on a favored group, even when there was no intention to discriminate.
Writing for the majority, Justice Anthony Kennedy noted that by allowing these so-called disparate-impact claims under the Fair Housing Act, “there is a danger that potential defendants may adopt racial quotas.” Realistically, this is all but certain.
Housing authorities already make decisions about where to build based on how best to avoid a discrimination lawsuit, not necessarily where the housing is most needed. With the Supreme Court's help, the Fair Housing Act is well on its way to becoming a vehicle for advancing what it originally was intended to prohibit—race-conscious housing decisions.
As Justice Samuel Alito explained in his dissent, proponents of disparate-impact analysis often harm the very low-income minorities they are trying to help. When St. Paul, Minn., tried to crack down on slumlords by ordering the cleanup and repair of rat-infested housing units with inadequate heat and sanitation facilities, it was slapped with a disparate-impact claim under the Fair Housing Act. Even though there was no evidence of discriminatory intent, the improvements increased the cost of rent, which disproportionately impacted minority tenants. “The upshot,” wrote Justice Alito, “was that even St. Paul's good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate-impact lawsuit.”
The Obama administration has used disparate-impact analysis and the threat of lawsuits to address everything from school-suspension rates to bank lending to firefighter exams, often at the risk of leaving the intended beneficiaries worse off. How does pressuring schools to suspend kids based on skin color rather than behavior help those students who are in school to learn? How does saddling low-income minorities with debt and bad credit scores, by lending them money they can't afford to repay, leave them better off? Disparate-impact proponents seem to view the actual individuals affected by their actions—the kids in need of special-education services or a safe learning environment; the ghetto housing tenant in need of a working toilet—as secondary concerns.
In a separate dissent, Justice Clarence Thomas got to the crux of the matter when he explained that the entire premise on which disparate-impact theory is based is suspect, not only legally but also as a practical matter. The search for racial parity in outcomes ultimately is a fool's errand. “We should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent,” he wrote. Historically, both in the U.S. and elsewhere, “[T]he absence of racial disparities in multi-ethnic societies has been the exception, not the rule.”
This piece originally appeared in The Wall Street Journal