Court upholds key tool to combat housing discrimination

Ariane de Vogue
June 25, 2015

The Supreme Court affirmed that a federal law passed in 1968 to combat housing discrimination by holding that the law allows not only claims for intentional discrimination but also claims that cover practices have a discriminatory effect even if they were not motivated by an intent to discriminate.


While many await Supreme Court rulings on Obamacare and same-sex marriage, civil rights groups are nervously anticipating what might be the sleeper case of the term.

The case concerns the scope of the Fair Housing Act, a law passed in 1968 that makes it unlawful to deny a dwelling to someone based on race.

The court is considering whether the 1968 law allows people to pursue lawsuits when a practice has a discriminatory effect, even if there was no intent to discriminate. Civil rights advocates say such “disparate impact” claims are essential to combat subtle instances of discrimination, but some companies, developers and housing authorities say they cost time and money investigating actions made with good intentions. And they argue these claims force a state or private entity to engage in race-conscious decision-making to avoid legal liability.

“There is a huge divide that exists between us,” said Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund who was at the Supreme Court on Monday waiting for a possible decision. “Our country remains deeply segregated and we need not only provisions of the Fair Housing Act to be intact, but we need aggressive, and affirmative enforcement of the act by the federal government and by state jurisdictions.”

The case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, began in 2008, when the Inclusive Communities Project, a non-profit organization that seeks to promote racial integration in Dallas, sued a state agency charged with allocating tax credits to developers who build low-income housing projects. The ICP accused the Texas agency of disproportionately allocating the tax credits to properties in minority populated areas.

Lower courts have ruled in favor of the ICP, and for years, other courts have allowed disparate impact claims to go forward. But critics say such claims have a negative impact on affordable housing.

“Housing authorities and developers are not able to make the same kind of decisions to develop affordable housing if they have to consider the effects of where they are developing and how the money is invested in housing,” says Michael W. Skojec, a lawyer with Ballard Spahr who has filed a brief on behalf of the Houston Housing Authority in support of Texas.

Skojec says that whether housing is developed in poor neighborhoods or more affluent neighborhoods, developers could still be subject to claims of disparate impact based on statistics of how minorities are affected.

“What we are trying to do is get people not to consider race, or think of people in racial terms,” he said. “The disparate impact concept encourages and requires people to think about race in every decision.”

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