by Valerie Schneider, Assistant Professor of Law at Howard University School of Law.
On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term. Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.
Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act. Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA. The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims. What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.
Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities: educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life.
After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years. Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.