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US supreme court upholds key enforcement tool to fight housing bias US supreme court upholds key provision banning racial bias in housing
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The US supreme court has upheld a key enforcement tool used by the Obama administration and civil rights groups to fight housing bias. The US supreme court on Thursday upheld a key anti-discrimination provision in one of the most cherished civil rights landmarks, the 1968 Fair Housing Act.
The justices ruled Thursday that federal housing laws can prohibit seemingly neutral practices that harm minorities even without proof of intentional discrimination. Signed into law a week after the death of Martin Luther King, the act forbids housing-related discrimination. Under a doctrine called “disparate impact”, it had long been interpreted as banning not only overt unfairness but also policies that were unintentionally biased, such as zoning strategies that inadvertently promoted segregation, as well as more subtle tactics that make it harder for minorities to live where they want to.
The ruling is a major victory for fair housing advocates who say that even race-neutral policies can have a negative impact on minority groups. The Justice Department has used so-called “disparate impact” lawsuits to win more than $500m in settlements from companies accused of bias against black and Hispanic customers. Civil rights activists argued that ending disparate impact would mean that those bringing discrimination claims would face the tough task of proving decision-makers’ mindsets, rather than the objective real-world consequences of their actions. They contend that the act is a valuable means to remedy unfair behaviour that remains widespread.
The case involves an appeal from Texas officials accused of violating the Fair Housing Act by awarding federal tax credits in a way that kept low-income housing out of white neighborhoods. Using Twitter, leading 2016 Democratic presidential candidate Hillary Clinton welcomed the decision:
Everyone deserves to live free from discrimination. Glad the Supreme Court did the right thing to #KeepHousingFair. -H
The financial crisis shone a spotlight on the lending practices of some institutions. In 2011 the US Department of Justice reached a $335m settlement with Countrywide Financial, which the government alleged charged more than 200,000 black and Hispanic borrowers higher fees than whites or placed them into subprime loans between 2004 and 2008.
But some banks, housing agencies and developers were keen to see the court rule against disparate impact on the basis that it limits their flexibility and unfairly exposes them to possible legal action regardless of their intentions.
“Recognition of disparate-impact claims is consistent with the FHA’s central purpose,” justice Anthony Kennedy wrote in the majority opinion, though the majority cautioned that their ruling was limited in scope and should not be interpreted as giving the green light for courts to impose racial targets or quotas.
“Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision,” Kennedy wrote in the 5-4 decision.
“Much progress remains to be made in our Nation’s continuing struggle against racial isolation … we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse.
“The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘[the] nation is moving towards two societies, one black, one white – separate and unequal’ … the court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”
The case stemmed from a lawsuit filed by a Dallas-based non-profit called the Inclusive Communities Project (ICP) in 2008. It sued the Texas Department of Housing and Community Affairs on the basis that it was disproportionately approving tax credits for affordable housing in minority neighbourhoods rather than white neighbourhoods, effecting a form of segregation.
Related: Texas pool party incident exposes McKinney's housing segregation battle
The genesis of the McKinney pool party incident earlier this month that sparked the latest debate about violent encounters with police and African Americans was an alleged insult that prompted a fight: “Go back to your Section 8 home.”
That referred to a federal programme that provides housing subsidies. In McKinney, affordable housing developments are concentrated in the eastern part of the Dallas suburb, while middle-class subdivisions such as Craig Ranch, the location of the pool, are in the west.
The ICP previously brought a lawsuit against McKinney, settled out of court, in which it accused the city’s housing policies of perpetuating racial segregation.
In a dissent, justice Clarence Thomas wrote that the issue was complex and “racial imbalances do not always disfavour minorities”, and made a reference to the majority of NBA basketball players being black.
“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.
In another long dissent which echoed Thomas’s by noting the large number of black players in the 2015 NFL draft, justice Samuel Alito said that the decision was inconsistent with the language of the Act and the intentions of Congress and could have a negative impact, because “when disparate impact is on the table, even a city’s good-faith attempt to remedy deplorable housing conditions can be branded ‘discriminatory’”.