Disparate impact in the Fair Housing Act: Antonin Scalia could save race-based protection.

A Fair Housing Rule May Be Doomed—Unless Antonin Scalia, of All People, Saves it

A Fair Housing Rule May Be Doomed—Unless Antonin Scalia, of All People, Saves it

Oral argument from the court.
Jan. 22 2015 11:25 AM

Scalia to the Rescue?

The Fair Housing Act might just find redemption from the unlikeliest justice.

Suburban home
Celebrating the purchase of a new home. Not pictured: Scalia.

Photo by Jupiterimages/Thinkstock

Supreme Court justices can be ideologues, activists, and dogmatists. But they’re also lawyers, and—when they’re able to put aside their personal prejudices—they can usually recognize a bad argument when they hear one. Going into Wednesday’s arguments over the Fair Housing Act, most court-watchers assumed the five conservative justices would be too blinkered by their politics to uphold a challenged portion of the law. By the end of the hour, shockingly, it seemed plausible that Justice Antonin Scalia could cast the deciding vote to save a measure that has helped combat race-based housing discrimination for more than four decades.

The case at the court involves a key component of the Fair Housing Act of 1968, the “disparate impact” rule. Under the disparate impact theory, discrimination in renting or selling housing doesn’t have to arise from blatant racial animus in order to be illegal. Rather, landlords and developers may quietly act in a manner that is race-neutral on the surface—but discriminatory in practice.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

Wednesday’s case provides an excellent example of a disparate impact claim. The basic facts are simple: A Texas state agency awards low-income-housing tax credits to certain developers; a high percentage of this housing winds up being occupied by minorities. The agency, without giving a legitimate reason, granted the tax credits disproportionately to developers who own properties in impoverished, minority-majority neighborhoods. A fair housing group sued, insisting that the agency’s practices had the effect of keeping minorities trapped in minority communities while helping white communities keep minorities out.

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The fair housing group would seem to have a slam-dunk case against Texas, except for one small problem: The court’s five conservatives hate the whole concept of disparate impact. To their minds, disparate impact claims are really just a backdoor way for the government to force developers to adopt racial quotas and to allow minorities to sue for racial bias based on nothing but a hunch. Plus, many federal laws—including the Fair Housing Act—often presume the possibility of disparate impact claims, without explicitly naming it. (Disparate impact theory is embedded in the heart of the Fair Housing Act, but the law never uses those precise words.) So the right wing of the Roberts court has launched a campaign to render the whole theory of disparate impact more or less illegitimate.

Wednesday begins with an unexpected populist protest from the audience about Citizens United, prompting a scornful “oh, please” from the unflappable Chief Justice John Roberts. Once the protesters are hustled out of the room, Texas Solicitor General Scott Keller dives into Wednesday’s arguments, and, as the transcripts demonstrate, the grilling begins almost immediately. Keller says the Fair Housing Act doesn’t recognize disparate impact claims because “its plain text” doesn’t mention them. Justice Sonia Sotomayor, the court’s most impassioned defender of racial fairness, cuts him off. Federal laws prohibiting employment discrimination and age discrimination don’t use the words “disparate impact,” she notes, “and yet we recognize that they apply disparate impact.” (You can’t sense the irritation in her voice from the transcripts, but trust me: This case irks Sotomayor.)

Keller backs into a word game. Those laws, he explains, use the phrase “adversely affected,” which is essentially a synonym for “disparate impact.” The Fair Housing Act, on the other hand, has no such “textual hook.”

Sotomayor isn’t finished. “You have a problem,” she informs Keller. The Fair Housing Act includes the phrase “or otherwise make unavailable.” When an agency “makes” property unavailable to minorities—as Texas functionally has here—won’t it have violated the law? Keller fumbles for an answer, but Sotomayor has already introduced her theme for the day: Disparate impact isn’t some judicial invention; it’s a vital piece of the Fair Housing Act as a whole.

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Justice Ruth Bader Ginsburg digs deeper into this argument. Wasn’t there, she asks Keller, “a grand goal that Congress had in mind” when it passed this law? “It meant to undo generations” of discrimination. Doesn’t that “give a clue to what Congress was after?”

Keller returns to his motif, maintaining that “the court needs to focus on the plain text.” This argument should appeal to Scalia, one of the court’s most passionate devotees of looking no further than the text of a statute. But Scalia has a problem—and in this case, a problem for Scalia is a problem for Keller.

“What hangs me up,” Scalia explains, is that “Congress seemingly acknowledged” the existence of disparate impact claims in the years since 1968. Specifically, amendments to the Fair Housing Act passed in 1988 created exemptions from disparate impact liability. If Congress took care to pass exemptions from disparate impact claims, surely legislators also acknowledged the existence of disparate impact in the first place.

“Why doesn’t that kill your case?” Scalia demands. Keller waffles, insisting that the amendments were irrelevant and that Congress wanted to “leave the law where it found it.” But if that were true, Justice Elena Kagan notes, then Texas should lose this case, because by 1988, 10 circuit courts and the Department of Housing and Urban Development all interpreted that law to recognize disparate impact. Keller starts to walk back his claim, but Sotomayor catches him in retreat, describing his argument as “a little crazy.” Keller tries a new tack, arguing that in 1988, Congress disagreed with the 10 circuit courts that had recognized disparate impact, and it passed the amendments to prevent the courts from expanding disparate impact claims any further.

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“You’re telling us that these amendments,” Scalia asks incredulously, were meant to prevent “further erroneous court of appeals’ decisions?” That, the justice notes, “is a very strange thing for Congress to do.” After all, if Congress didn’t like the courts’ recognition of disparate impact, why not simply amend the law to unambiguously prohibit disparate impact claims?

Sotomayor drives in the stake: If Congress “didn’t like the disparate impact analysis, they would have” barred it in the 1988 amendments. “But they didn’t.”

Justice Samuel Alito tries to ride to Keller’s rescue, but with Texas’ time running out, it appears his text-based argument can’t find five votes.

When Michael Daniel approaches the lectern to take on Texas, then, he seems to have an ace in the hole. But the glow wears off as soon as Scalia opens his mouth, reminding the courtroom that, yes, he really does hate disparate impact. Daniel’s argument, Scalia says, confuses racial disparity and racial discrimination. He even has a helpful illustration to prove his point: “The fact that the NFL is largely black players is not discrimination. Discrimination requires intentionally excluding people of a certain race.”

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With the matter of the NFL’s racial policies firmly settled, Scalia asks the question everyone has been waiting for him to ask: Racial disparity does not always signal racial discrimination, so why should Texas’ decision to build low-income housing in minority-dominated neighborhoods be illegal under the Fair Housing Act? Justice Elena Kagan tries to toss Daniel a softball, but Roberts interrupts his answer. “I’m sorry,” Roberts says. “If you want, you can complete your answer to Justice Kagan.” Then he adds a tart little coda: “It was not a hard question.” It seems President Barack Obama isn’t the only one ad-libbing burns this week.

Roberts proceeds to guide the argument right where conservatives want it—into the land of spine-chilling race-based classifications and blood-curdling racial quotas. “What is the housing authority supposed to do” when it has been sued for disparate impact, he asks. When Daniel doesn’t tell him what he wants to hear, he answers his own question: “It seems to me that if the objection is that there aren’t a sufficient number of minorities in a particular project, you have to look at the race until you get whatever you regard as the right target.”  

Alarm bells! If Roberts can get him to admit that he wants Texas to consider race in order to avoid disparate impact suits, he’ll bump into a whole new problem: According to the court’s conservatives, the equal protection clause of the 14th Amendment, which was passed to protect newly freed slaves, actually bars states from using racial quotas—and maybe even race-conscious policies—in order to help minorities. In fact, Scalia has openly doubted whether disparate impact itself can pass equal protection muster; he may only be eager to accept that the Fair Housing Act permits disparate impact claims in order to invalidate the constitutionality of disparate impact itself.

Daniel pushes back against Roberts. “There’s no racial goals” in the remedy for Texas problem; “there’s no race conscious in it, there’s no racial criteria in it.”

But the willfully race-blind Roberts isn’t buying it, and when U.S. Solicitor General Donald Verrilli steps up to support Daniel’s argument against Texas, Roberts raises his concern even more forcefully. This time, Scalia joins in, informing Verrilli that his solution to disparate impact claims would force developers to “select on the basis” of race.

The court’s five conservatives make no secret of their hatred of any kind of race-conscious policy, and at least four of them are probably ready to strip disparate impact provisions from the Fair Housing Act altogether. At the close of Wednesday’s arguments, the continued survival of disparate impact—one of the most useful tools in preventing housing discrimination for decades—seemed to hang on Scalia’s vote. And unless the justice can look past his politics to see the absurdity of Texas’ arguments, this case will wind up being yet another blow to civil rights in America. The Roberts court likes to claim that it’s race-blind. But cases like this one suggest it’s simply blind to racism.