Today’s monumental 5-4 Supreme Court decision in Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project, Inc.—a victory for both housing and civil rights advocates alike—has affirmed our nation’s symbolic commitment to equal treatment under the law. The court’s decision upheld the validity of “disparate impact,” a standard created by the Fair Housing Act of 1968 that allows groups and individuals to challenge policies with discriminatory outcomes.
Disparate Impact Provision Upheld
The case, initially brought to court in 2008, involved Inclusive Communities Project (ICP), a nonprofit fair housing organization that helps low-income African American families find housing in more economically thriving and stable communities. ICP sued the Texas Department of Housing and Community Affairs, accusing them of promoting racial segregation by disproportionately allocating affordable housing development tax credits in minority areas. At the time, the agency had located more than 92 percent of the 19,685 affordable housing units in minority census tracts; less than 9 percent of units were located in middle and upper-income tracts.
A federal trial court ruled that the Texas state agency violated the Fair Housing Act because their policies had a disparate impact on African Americans. Despite a lack of intentional discrimination, the court said the allocation results increased racial segregation and therefore violated the fair housing statute. The Supreme Court later agreed with the federal trial court’s decision and reaffirmed the evidence of disparate impact. In a country where discriminatory housing policies continue to be an impediment to equality, this ruling is a critical tool in the fight against racism.
Decades of unfair housing policies have intentionally fostered the conditions we are witness to today, in cities ranging from Ferguson, Missouri to Baltimore, Maryland. Policies such as redlining, restrictive covenants, and other blatant forms of discrimination are illegal, yet the modern iteration of segregation and racism persists through subtle and race-neutral, but just as insidious, policies. The result of these policies has been to constrain the mobility of low-income families. Poor housing means fewer opportunities and insufficient access to transportation, quality schools, and jobs. Fortunately, the Fair Housing Act aims to combat these modern discriminatory policies. Policy advocates and community organizers use the disparate impact provision in the Fair Housing Act, which states that “a policy or practice may be considered discriminatory if it has a disproportionate ‘adverse impact’ against any group,” to roll back problematic policies. Furthermore, disparate impact reaches beyond race to prohibit discrimination based on national origin, religion, sex, handicap, familial status, color, and gender.
It is clear, then, that the Supreme Court decision averted what could have been a disaster for justice. In fact, Justice Anthony Kennedy, who wrote the majority opinion, also acknowledged the structural disenfranchisement of African Americans, saying “Much progress remains to be made in our Nation’s continuing struggle against racial isolation.” Despite this positive outcome, however, the ruling only reinforces what has already been widely accepted for decades: that disparate impact is a fair, and important, standard. But with discriminatory policies still prevalent throughout the country, disparate impact alone is not enough. More aggressive action needs to be taken to truly address the institutional racism embedded in our nation’s geography.
Addressing the Enduring Legacy of Housing Segregation
Despite today’s victory, racial injustice continues to persist through many avenues, including housing segregation. As the Berkeley Law professor john powell said, “Housing lies at the very heart of a system of institutional relations that reproduce inequality.” Homeownership, the largest investment that most Americans families have, drives the racial wealth gap, which grew during the recession and foreclosure crisis in 2007 and 2008. By some measures, white-black segregation is declining on a national scale, but large disparities still remain. For example, on average, black families earning an annual household income of $100,000 or more per year live in the same disadvantaged neighborhoods as white families earning an annual household income of $30,000. Homeownership still lags behind for communities of color, with only 45.6 percent of Latinos and 42.9 percent of blacks owning their homes, compared to 72.6percent for whites in 2014.
While disparate impact is an important tool to counter discrimination, far more must be done to acknowledge and reverse the barriers to equal housing. This call to action is in part because the effectiveness of disparate impact has declined. In the last forty years, plaintiffs making disparate impact claims succeeded less than 20 percent of the time, and in the 2000s, that rate dropped to just 8.3 percent. Furthermore, while disparate impact has been able to stop some abuses, it is insufficient to discourage them altogether, since it does not hold defendants morally accountable or sufficiently penalize them for their role in furthering racial inequities. Essentially, the current standard operates under the idea that only obvious, intentional discrimination should receive moral blame—that is, disparate impact cases almost always have few consequences for defendants who are found guilty, other than requiring them to fix their policies. Thursday’s decision is an important reaffirmation of the importance of combating discrimination, but the statute still needs to be strengthened so that it can be more than a band-aid solution for when harmful policies continue to be enacted.
We must rectify current policies, while actively promoting new ones. Despite disparate impact, exclusionary zoning laws and housing restrictions, particularly in wealthy white suburbs, are the most common legal impediment to affordable housing. To connect communities to opportunity, we should adopt inclusionary zoning, which offers bonuses to developers including affordable housing in their projects. In addition, the Obama administration and the U.S. Department of Housing and Urban Development are currently promoting upward mobility by attempting to diversify wealthy communities through federal grants.
These efforts, and others like them, are necessary for reversing the impact of decades of discriminatory housing. While disparate impact allows case-by-case challenges of the biggest obstacles to fair housing, there is much more to be done in creating a society where integrated housing readily fulfills the promise of equal opportunity for all.