Not Obamacare or gay marriage; The race and discrimination case (TX Housing v. ICP)

By Cara L. Gallagher, weekend contributor

While you were celebrating your free healthcare at gay wedding receptions, you likely missed a decision in a critical case about discrimination, housing, and a legal matter called disparate impact. The decision in this case (Texas Department of Housing and Community Affairs v. Inclusive Communities Project) came down Thursday and was off the radar because the Obamacare decision came down the same day. Roberts delivered the Obamacare decision, which upheld the national insurance program and was joined by five other justices. Yes, this much-hyped case – the biggest of the term, in the eyes of some – did not turn out to be a 5-4 decision. The Texas case, however, was the 5-4 case of the day in which Kennedy cast a decisive vote and authored the opinion for the four other liberal justices.

I wrote about this case shortly after the oral arguments were given back in January. It explores The Fair Housing Act, passed in April of 1968, which was signed into law immediately after Dr. Martin Luther King, Jr. was assassinated. The intent of the law was to eradicate discriminatory housing practices that resulted in segregated neighborhoods. Such obstacles to had long kept minorities from opportunities because of their “race, color, religion, or national origin.”

A group called the Inclusive Communities Project (ICP) challenged Texas’ Department of Housing for giving too many tax credits to housing in predominantly black neighborhoods. While awarding tax credits seems inherently good and in the spirit of the Act, if they’re repeatedly awarded to housing developers in predominantly black, low-income neighborhoods then they keep black neighborhoods black and white neighborhoods white. In short, when the money (tax credits) stays in the same place, it does nothing to integrate neighborhoods, especially those segregated over decades. None of the tax credits were being sent to housing developers in white neighborhoods. In fact, “92% of low income housing tax credit projects were put into communities of color.” Consider the long-term effects a lack of housing mobility has on a family. It doesn’t simply limit the number of choices of neighborhoods they have to pick from; it also impacts what schools their children attend, the quality of their education, health (more food “deserts” and less quality grocery options), access to transportation, job opportunities, safety, and life expectancy.

The housing credits are provided by the federal government, which is how they got involved in this case, but the states hold the power to distribute the credits to the developers. The state of Texas argued they distributed the tax credits in the way they saw necessary, one that was race-neutral and lacked any intent to discriminate.

The ICP argued that, although the intent wasn’t to discriminate, the end results perpetuated segregated neighborhoods. This is what is referred to in the case as “disparate impact,” which is when a policy is written in a neutral way but has an effect that discriminates against a class of people. In an interview, Lisa Rice, Vice President of the National Fair Housing Alliance, likened it to insurance companies who refuse to insure a home valued below $65,000. On its face, that’s not an obviously discriminatory rule, but the effect excludes more Latino and Black families, who are more likely to own a home of that value, than whites. The ICP had data that made a compelling argument about the effects tax credits had on housing options for people of color and filed a disparate impact claim against Texas. This data was key for, as Rice said, courts don’t like to be called out as being “racist,” so you better be able to prove discrimination was the end result.

The question the Supreme Court had to answer was whether or not a group like the ICP can make such a claim when the purpose of the Fair Housing Act was always to prevent discrimination in housing. The ICP argued the spirit of the FHA does, but today’s second-generation discrimination isn’t obvious like it was in 1968 and 1988. The more common forms of discrimination are cancelled appointments, no-shows to apartment showings, convoluted application forms, or requirements of very high credit scores. These are common race-neutral practices in which the intentions are not overtly discriminatory but the outcomes consistently result in white tenants.

In order to prove such practices, groups like the ICP need to be able to file disparate impact claims in courts. Texas argued that if Congress intended to allow disparate impact cases they would’ve articulated exactly those words in the 1988 reauthorization of the FHA. To allow such cases would open the floodgates to anyone who wanted to challenge any seemingly insidious discriminatory business practices of landlords and homeowners in courts.

Justice Kennedy agreed with the ICP. In his opinion, “Recognition of disparate-impact claims is consistent with the FHA’s central purpose…These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability.”

In his dissent, Justice Alito said this decision will burden the states by allowing a deluge of disparate impact claims to flood the courts. “At last I come to the ‘purpose’ driving the Court’s analysis: The desire to eliminate the ‘vestiges’ of ‘residential segregation by race.’ We agree that all Americans should be able ‘to buy decent houses without discrimination . . . because of the color of their skin.’ But this Court has no license to expand the scope of the FHA to beyond what Congress enacted.”

The majority’s decision sets a precedent that allows groups to challenge what lies at the heart of insidious racism and discrimination today – the ability to legally challenge policies and actors in the “Oops! I swear, I didn’t intend to be racist!” camp. Although inundated with horrifying stories and images on television from Ferguson, New York, Baltimore, Charleston, and Cleveland (to name but a few), overt racism is far less common than subtle, passive-aggressive forms made by well-intended policy-makers and state agents. Casual acceptance of seemingly neutral laws written with the intent to help the very people the laws are disadvantaging is the modus operandi of the minority in this decision. It’s also the default setting among those who look at the stories that come out of those cities and reconcile such tragedies as the consequences of “choosing” to live in violent neighborhoods. No one chooses to live in places where violence is pervasive. If you think that’s why violence in low-income and minority neighborhoods is so common, ask yourself why it is those families haven’t left by now and then read the data and stories represented by groups like the Inclusive Communities Project.

“Most of the evil in this world is done by people with good intentions.” – T.S. Eliot

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

50 thoughts on “Not Obamacare or gay marriage; The race and discrimination case (TX Housing v. ICP)”

  1. Nomadic “Indians” on the American continents are native to Asia not America.

    These nomads traveled the “Alaskan Land Bridge” about 20,000 years ago.

    There were no recorded deeds or claims on real property the American continents before Europeans sailed the Atlantic Ocean.

    According to a previous post, the lions in Africa and the buffalo in North America could have made the same claim to native status and ownership as the Asian migrants (their languages were similarly complex, or not!). They had no surveyed property or recorded deeds, but they were living organisms – bio-entities – on the land.

    If the Asian migrants have a legitimate claim to “native” and ownership in America, they have the same claim to Canada, Mexico, Brazil, Peru, Costa Rica, Columbia, etc. Tell them that.

    By the time the radical extremist, psycho-babbling, collectivist liberal whack-jobs get done infusing, pervading and infecting themselves, and anybody else stupid enough to listen, with synthetic, fantasized and artificial guilt, Americans won’t have anything left and America won’t exist.

    “Fundamental transformation.”


  2. It is possible to rehabilitate an underclass given enough resources deployed for their benefit. This actually happened in Australia where the underclass of Britain’s criminal scum who were not worth hanging became the components of a prosperous new nation. However someone had to pay, the resources used to rehabilitate the British scum consisted of land confiscated from the previous occupants, the descendants of unlawful migrants who entered the continent 60,000 years before the rightful owners. These descendants sank into poverty, dysfunction and squalor probably worse than that of America’s Negroes.

    In the US the land confiscated from the Native Un-Americans has been used up by white people. there is none left over to subsidize the rehabilitation of the Black underclass and decent white Americans are never going to tolerate enough of their tax money spent to benefit the undeserving Blacks. The squalor and dysfunction of American Negroes will never be remedied because human nature does not allow it.

    The US needs to consider what remains possible. A final solution to the Negro question could be feasible when white Americans such as the bulk of Turley commentors on this thread whip themselves up into a sufficient frenzy of hatred. For the Negroes this would represent only kindness that the US is able to do them.

  3. In the community where I live, these housing tax credits are primarily used for urban redevelopment. Old, run-down buildings are replaced by new construction. Activists in these neighborhoods agitate for improved housing. The people who used to live in a slum end up with new housing. How is this a problem? It was their home and community before and it still is. When Whites and Asians move into these neighborhoods, it’s considered “gentrification” and the newcomers are villified.

    Is it good only when low-cost housing–primarily sold/rented to minorities–is built in the middle of upscale communities, but bad when people remain in their original location with their original community ties?

  4. Beldar here. I read the dog comments and the name Betty Lou Thelma Liz rang a chord. So I googled lyrics and found, as I thought, that this is the name of the wife of the redneck guy named that in the song Up Against The Wall Redneck Mothers by Jerry Jeff Walker and I think written by Jay Wiley Hubbard. Some folks in New Orleans told me that the name got some traction after the song was published. Good luck to Isaac and Betty Lou Thelma Liz on their quest for marriage in Cuba. I hope they brought some cash. Cuba is a bit corrupt.

  5. Betty Sue Thelma Liz Ramrod and her husband to be left on an airplane headed for Cuba this a.m. to get married. HumpinDog’s real given name is Isaac. So he will be renamed Mr. Isaac Ramrod. When the get back, and if the marriage is secured, will file it in some Court in North Carolina and seek recognition of their marriage. Mr. and Mrs. Ramrod will live in her single family section 8 housing dwelling and she will still receive food stamps and medicare and some other govt program assistance for being blind. Isaac wont get any assistance from the govt because he is just a dog. He is a good guide dog and has shown guidance to his wife to be. He will be a preacher in the Eighth Day Adventist Church here but will not get paid. Maybe some dog biscuits when they pass the plate. I am keeping my paws crossed that all goes well on the airplane flights and visas and whatnot. The Ramrods will live in a fully integrated neighborhood. Not much will change as far as the neighbors will know– just one guide dog doing his duty in the house hold. He will be wearing a wedding ring on his paw.

  6. A way of life is laid out like this: The 14 year old daughter of single mom living in assisted living gets knocked up by some anonymous neighbor who will remain unknown for as long as possible and the minor child then gives birth and “gets her check”. The new baby stays on with mom in grandma’s house and grandma is more ma than the real ma until the next generation pops out 14 years later. Meanwhile the dad never pays child support or shows up to say hi to his offspring. The household might have three or four or ten “checks” coming in from the government program known as A.I.D.C. or Aid to In- Dependent Children. On top of this the government has allowed the collection of humans to live in some dwelling known as the Pruitt Igoe Project. It is a high rise apartment complex filled with like minded check getters and full of budding criminals young and old. An alternative abode is some Section 8 Housing in a multi family or single family set up. The “disparate treatment” litigation means that this abode is coming to a neighborhood or street near you. If you agree with all this then vote for Hillary and if you disagree with it then vote for …. Who? Who has spoken out? Rand Paul? Cruz? Huckabee? Jack Mehoff? Harry Rectum? Ann Rand? Ron Paul? Donald Trumpet?
    Of all the candidates no one spoke out on these issues since this decision was rendered. They were all concerned with the bent Americans and not the free landers. This just shows how America has gone to Hell in a handbasket. Oh, pay your taxes for Christ sake so that this can keep moving ahead.

    SCOTUS = Stupid Carcus Of The United States.

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