Fair housing protections remain robust
For a number of years, the Supreme Court has signaled its interest in deciding a case under Title VIII, 42 U.S.C. §§ 3601, et seq., to address the viability of disparate impact doctrine. The disparate impact doctrine, also known as the discriminatory effect doctrine, enables plaintiffs to prove civil rights violations by showing that a supposedly neutral policy or practice has a statistically significant negative impact on a group covered by the applicable civil rights law. In other words, the operation of a “non-discriminatory” policy or practice has such large adverse effect that discriminatory intent plainly can, and reasonably will, be inferred.
For decades, the Federal Courts of Appeals in the United States have consistently adopted and applied the disparate impact doctrine under Title VIII, also known as the Fair Housing Act. That no Circuit split has existed in this regard makes it all the more puzzling for the Supreme Court to be apparently determined to address whether housing discrimination claims can be proved under the disparate impact doctrine. After several foiled attempts, the Supreme Court finally heard a disparate impact case under the Fair Housing Act. At stake in the case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., was nothing less than the ability to address (through individual and organizational plaintiffs as well as via class action representatives) exclusionary zoning, predatory lending, insurance redlining, real estate steering, and other housing discrimination in a meaningful way – including through vital injunctive relief and the recovery of substantial money damages.
Contrary to the trend in recent cases decided by the Supreme Court regarding civil rights statutes – as illustrated by the Supreme Court’s mistaken analysis in Shelby County v. Holder concerning the Voting Rights Act, 52 U.S.C. §§ 10101, et seq. – the Supreme Court in Inclusive Communities Project drew heavily on the historical context and the social circumstances surrounding enactment of the civil rights law at issue. Justice Anthony Kennedy authored the majority opinion in Inclusive Communities Project, and he wrote, “The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.” In so stating, the Supreme Court underscored that the Fair Housing Act codifies two compelling policy objectives: (1) eliminating all illegal discrimination and (2) affirmatively promoting integrated communities. This should not be surprising because Congress enacted the Fair Housing Act pursuant to the Thirteenth Amendment to the Constitution, which abolished slavery. In other words, adoption of the Fair Housing Act turned on the recognition that the segregation of housing means the segregation of schools and other institutions and, ultimately, of the larger society – all of which is a vestige of slavery according to Congress.
In reaffirming that a broadly interpreted disparate impact doctrine can be used to prove housing discriminations claims under the Fair Housing Act, the Supreme Court explicitly tied its decision to the history of this country and the related policy considerations: “In April 1968, Dr. Martin Luther King Jr. was assassinated in Memphis, Tenn., and the nation faced a new urgency to resolve the social unrest in the inner cities.” The Supreme Court further observed that Congress responded to this crisis by passing the Fair Housing Act and, consequently, a liberal interpretation of that law must continue even now.
This is a great victory because housing is more than simply a place to eat and sleep; it is also typically the access point for quality schools, employment, health care, capital, and other opportunities that are the keys to success in life. Therefore, eliminating discriminatory barriers to equal housing opportunity is clearly in the public interest. The decision in Inclusive Communities Project significantly advances the cause in that regard.
