On January 21, the U.S. Supreme Court is scheduled to hear oral arguments in the case of Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project. The National Low Income Housing Coalition signed one of 22 amici curiae supporting the disparate impact standard in housing discrimination cases that is the subject of this case.
Disparate impact refers to policies that have a discriminatory effect, even if the intent to discriminate is not immediately evident. For more than 45 years, courts have recognized two categories of discrimination prohibited under the Fair Housing Act of 1968: acts that are clearly intentional, and acts such as policies and practices that might seem neutral but that have a discriminatory effect. The Supreme Court will take up the question of whether disparate impact will remain a safeguard against covert discrimination.
Section 804(a) of the Fair Housing Act makes it unlawful “[t]o refuse to sell or rent…, or otherwise make unavailable or deny, any dwelling to any person because of race, color, national origin, religion, sex, familial status, or handicap.” (emphasis added)
Shortly after passage of Title VIII of the Civil Rights Act of 1968 (more commonly referred to as the Fair Housing Act), Federal Circuit Courts unanimously upheld that violations of the Fair Housing Act can be established through a disparate impact standard of proof. By 1988 when the Fair Housing Act was amended to expand its scope, nine Circuit Courts of Appeal had found the disparate impact standard necessary to enforce the law. Today, eleven of the thirteen Circuit Courts have considered the question and agreed. Under the disparate impact standard, courts assess discriminatory effect and whether an action perpetuates segregation, whether the discrimination is justified, and whether less discriminatory alternatives exist for the challenged practice.
In the 1980s, Senator Orrin Hatch (R-UT) questioned if the Fair Housing Act does have a discriminatory intent requirement. On five occasions he introduced amendments that were ultimately rejected. For instance, in 1981, 1983, and 1985 he proposed an amendment that would have added: “Nothing in this title shall prohibit any action unless such action is taken with the intent or purpose of discriminating against a person on account of race, color, religion, sex, or national origin.”
The 1988 amendments to the Fair Housing Act passed by a vote of 94 to 3. Congress rejected an effort then to add a discriminatory intent requirement. The House of Representative’s Committee Report stated, “The Committee understands that housing discrimination…is not limited to blatant, intentional acts of discrimination. Acts that have the effect of causing discrimination can be just as devastating as intentional discrimination.”
The 1988 amendments significantly expanded HUD’s enforcement and interpretive authority by giving HUD the power to conduct formal adjudications of fair housing complaints and to issue regulations interpreting the Act. In November of 2011, HUD issued a proposed rule to amend its Fair Housing regulations in a manner that would confirm that the Fair Housing Act may be violated by a housing practice that has a discriminatory effect, regardless of whether the practice was adopted for a discriminatory purpose. The proposed rule sought to establish uniform standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act. A final rule was published on February 15, 2013 (see Memo, 2/8/13)
One of the amicus briefs supporting the disparate impact standard was signed by former Senators Walter Mondale (D-MN) and Edward Brooke (R-MA), who co-sponsored the 1968 Fair Housing Act. The brief states, “This broad language [of Section 804(a)] – which focuses on the consequences of an action, not the mindset of the actor – carries out the Act’s broad purpose…History demonstrates that Congress intended to prohibit all forms of discrimination in housing – including actions having the effect of disproportionately denying housing based on a protected class characteristic…This case threatens the continued vitality of this key enforcement tool. Without disparate-impact liability, practices that have the same discriminatory consequences as intentional acts of discrimination would be shielded from the reach of the law. Congress did not intend this result.”
The Inclusive Communities Project (ICP) is a Dallas-based nonprofit that assists low income people in finding affordable housing and that seeks racial and socioeconomic integration in Dallas housing. ICP assists voucher holders who want to move into non-minority areas obtain apartments in non-minority suburban neighborhoods by offering counseling, assisting in negotiations with landlords, and by helping with security deposits.
In the original lawsuit, Inclusive Communities Project vs. Texas Department of Housing and Community Affairs, ICP challenged how the Texas Department of Housing and Community Affairs (TDHCA) allocated Low Income Housing Tax Credits (LIHTCs) in the Dallas metropolitan area, asserting that TDHCA’s allocation decisions had a disparate racial impact. Ninety-two percent of the LIHTC units were in census tracts with more than 50% minority households. In March 2012, Federal District Judge Sidney A. Fitzwater ruled that the way TDHCA awarded LIHTCs in the Dallas area had a disparate racial impact, violating the Fair Housing Act. TDHCA implemented a plan to do what the judge directed, which worked fairly well for two years, according to John Henneberger of the Texas Low Income Housing Information Service, an NLIHC State Coalition Partner. However, Texas Governor Rick Perry and Texas State Attorney General Greg Abbott decided to appeal Judge Fitzwater’s decision in an effort to have the Supreme Court rule against disparate impact.
The amicus brief NLIHC signed on to is at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-1371_amucu_resp_LawyersCommittee.authcheckdam.pdf
The amicus brief signed by former Senators Brooke and Mondale is at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-1371_amicus_affirmance_Congress.authcheckdam.pdf
The Inclusive Communities Project brief and the 22 amici in support of disparate impact, as well as the TDHCA brief and amici in challenging disparate impact are at SCOTUSBlog, http://www.scotusblog.com/case-files/cases/texas-department-of-housing-and-community-affairs-v-the-inclusive-communities-project-inc
John Henneberger’s Blog is at http://www.texashousing.org/blogref/blogref.html