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
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Seems to me that the term segregation is being confused by some. There is no segregation anymore. Period. The reason there are less of a group of similar individuals anywhere is because that is their choice. I have many friends in the gay community. They choose to be segregated from others. I don’t blame them. Ever been to a gay household? For the most part they are very neat, clean, tidy and well decorated. They work hard and care for what they have. They manage their money well. When they move into and “invade” a neighborhood, property values rise and it becomes a hot spot to live in. Sure, there are still small minds that have prejudice. There will always be. Racism, sexism and all the other ism’s make up a very small portion of our society today The only time I ever see it or hear about it is when it is being reported on the news or portrayed in movies or on TV. It is being fabricated. It is part of an agenda to fuel the flames to make you believe I hate you for what you are. Again, there are those out there and there will always be those out there. Do any of the ism’s impact any of us in our daily lives? I dare anyone that reads this to try to remember the last time they encountered an ism personally. Yea, that’s what I thought. Turn off the media. Tune out the pot stirrers. Go out and get involved in a positive worthwhile venture. Be a hemorrhoid that just wont heal on your local politicians doorstep. Plant a small fruit or nut producing tree somewhere Get involved in a good cause that you care about. There is always something to do to create positive feelings and outcomes for you and others and your community. Stop the slinging, worry and criticism and it will have nothing to sustain it. All you need is love.
John Lennon
LOL, population not “ovulation”, damn you autocorrect!
Fareed Zakaria had a leading segment on his show about integration and the success of integrating in Singapore, which when formed had many different ethnic groups. Most of the ovulation live in housing developments and there is a quota for each ethnic group in any one of the neighborhoods. The forced integration has been a huge success, the mixed populations are getting along peacefully. I’m not advocating integration to this extent here in our country, but we could learn a few things from the Singaporeans.
True Detective will illustrate the evil of public transportation.
just as
Scott Walker will show us the waste of a university system.
Sidenote…
Did you know that American university students are opting out of an education in the States and choosing to attend university in Germany – where the annual cost of a full load is less than $500/yr? And yes – that is $500 for a non-citizen.
Doc,
Not astounding at all considering….
Cara, it’s more good news along with the other two SC decisions this past week. When wrongs have been righted it’s a positive for the country as a whole. Segregation is not a concept to laud, or to continue. it’s been destructive and has kept ghettos intact for generations. Time to truly integrate, time to show the rest of the world we are not a racist country once and for all.
And then we have the mental giant, Liberty or Death, who would allow a person a 4×2 area livable area.
Peace and Love on a Sunday morning on the Turley Blog.
Reassuring, isn’t it.
DBQ, I don’t know if you have HBO. But, True Detective this year is set in California. Vince Vaughn plays a wheeler dealer in a town crafted after the very corrupt city of Vernon, Ca. Vaughn’s character is capitalizing in the high speed rail boondoggle. Vaughn, a libertarian in real life, talks about “Cost overruns are guaranteed by the Federal govt.” The first year of True Detective showed evil in government. This season will be focusing on it. Vaughn is an interesting guy. There are libertarians and conservatives in Hollywood, but they mostly keep a low profile. Vaughn speaks his mind and may have had some influence in this story line.
Astounding.
We should model housing policy on prison models for protecting the vulnerable and unruly.
Segregation is good.
It’s good that no Jews can belong to the local country club.
It’s good that no women could belong to Augusta National.
It’s good homosexuals can’t teach in that school.
It’s good that homosexuals cannot stay in that B&B.
It’s the Justice Thomas school of moral philosophy. Look at segregation in the NBA.
Nobody is guaranteed anything for free in this country other than life liberty, justice and the right to pursue prosperity. Most subsidized housing is in poor neighborhoods because that’s where it is needed and most of the other free services provided are within close proximity as well. If a housing project were to somehow get built in a better neighborhood it would just bring down the value of the homes surrounding it. Most of the crime happens in the areas where projects exist. Have you ever seen a really nice project that was well kept, litter free and maintained properly because the residents took initiative and worked on and around it themselves in appreciation for the free housing taxpayers are providing? I am sure they are out there somewhere but apparently very well hidden. Every area I have toured is minimally maintained. And only that because, once again, taxpayers are responsible for it. Better groceries cost more money. That would stretch the food assistance budget received each month from the taxpayers. It wouldn’t be long before the monthly budget for food stamps would be strained and more assistance from the taxpayers would be necessary to stave off the malnutrition that would surely set in and be complained about because the assistance just isn’t enough get by on. Better schools are in better neighborhoods because better teachers make better wages and want to work where they don’t fear for their safety each and every day. I have spent a lot of time in low income areas and in my fifty plus years I have never seen one person pick up one piece of litter, scrub the tags OFF of a building or a fence or a train car, repair the gate someone ripped off the hinges or fix anything else for that matter and I have never seen a resident get out and start a garden with seeds purchased by the food stamps they received monthly. I’m sure it happened somewhere. But I have never seen it and I am doubly sure the things I just pointed out are very rare occurrences if they do happen. What I do see is buildings in need of repair among filthy unkempt areas with a lot of people sitting on buckets under trees and on porches, standing in front of stores or somewhere on the block, or riding around in their cars with custom paint jobs and thousands of dollars of rims and tires. I always know when their coming because I hear their expensive stereos and speakers from within my house as they turn the corner three blocks away.
There are lots of things wrong in this country that need to be addressed such as the income and taxation disparities and getting people off their buts and involved positive. I can guarantee you that additional assistance will not help the problems we face in America. GIVING someone a better home in a better neighborhood will not help them or this country. Because it will never be enough. If it were up to me to make the decisions on assistance I would cut the square footage provided for shelter down to eight square feet per person and unless you are proven disabled you would be locked out during the day unless you have a job and are working doing something. That could be community service or cleaning up all the empty beer bottles on the grounds of the project and surrounding areas. This country owes no one anything at all. The lack of oversight by citizens has allowed politicians and big money to run rampant and roughshod over the population and rig the game in their favor. Nothing new there. Don’t expect anything and you won’t be disappointed with what you receive. For the record I am not a racist and I am not rich. What I am is a realist that’s tired of paying for others with my taxes when I can’t afford myself anymore. “And that’s all I have to say about that.”
Forrest Gump
When the government gets involved and tries to solve problems, they tend to create worse situations than the one they are trying to fix. HUD and the building of Section 8 housing clusters are a prime example. Clustering poor people in what is basically segregated housing only magnifies the conditions and sociological/cultural conditions that make people be poor and stay poor.
Studies show that recipients of Section8 vouchers have tended to choose moderately poor neighborhoods that were already on the decline, not low-poverty neighborhoods. One recent study publicized by HUD warned that policy makers should lower their expectations, because voucher recipients seemed not to be spreading out, as they had hoped, but clustering together. Galster theorizes that every neighborhood has its tipping point–a threshold well below a 40 percent poverty rate–beyond which crime explodes and other severe social problems set in. Pushing a greater number of neighborhoods past that tipping point is likely to produce more total crime. In 2003, the Brookings Institution published a list of the 15 cities where the number of high-poverty neighborhoods had declined the most. In recent years, most of those cities have also shown up as among the most violent in the U.S., according to FBI data. http://www.theatlantic.com/magazine/archive/2008/07/american-murder-mystery/306872/
This idiocy is still being pushed by government. Our County had decided that in order to be able to dip into the Federal Government money pot and get all the funds for low income housing they would wave a magic wand and designate “high density low income housing zones” in communities through out the County. Ta Dah!!!!! Instant slums but…..hey the County gets some money.
The town near where I live has a population of about 600 people. Most of the area surrounding the town is agricultural or residences on parcels that are from 3 to 20 acres. Sparsely populated and rural. In their imminent wisdom the “planners” picked a 2 acre parcel in the itty bitty town to put a 30 unit two story low income housing development. People were up in arms for many reasons.
The type of structure would be completely out of character for the area. A big square boxy ugly apartment building. Cheaply made too since the builder would be trying to get as much bang for his buck as possible. Instant slum.
The residents of the newly created slum would have nothing to do. If you are trying to get people out of poverty you don’t cram them into an area where there are no jobs. No opportunity to get jobs. No public transportation. NOTHING to do creates crime and mischief. Drugs and petty theft. No thanks. We have enough already
Children would have nothing to do, unless they join 4H, FFA, decide to take up fishing or hiking….Good luck with that!
We don’t even have sidewalks, for God’s sake, so activities like bike riding or skate boarding would be out for the kids.
The County planners don’t care about the residents of the instant slum or the impact on a small community of the influx of such a large (percentage wise) group of people who would be clustered and frankly not be accepted into the community. All they are looking at is the money for themselves.
Warehousing the disadvantaged in a big featureless apartment building in a sparsely populated rural area where they have no chance to improve their lot or to get out of poverty. How unfair to them. How cruel.
Instead the low income housing should be in the larger towns or urban areas and not in a big warehouse cluster type of apartment. The people NEED access to jobs, job training, public transportation, shopping! (It is over 80 miles from here to any stores of any size We do have ONE small grocery store where everything is at least double what it is elsewhere.There are no stores to buy clothing or household supplies locally. That would be 30 miles away). They need schools, junior college opportunities.
Strikes me there is a biased shift of emphasis in this piece. I do not know the law, so I merely point out the author’s language:” Texas’ Department of Housing for giving too many tax credits to housing in predominantly black neighborhoods.” In predominantly black neighborhoods, says so right there. That should be taken as a sign of pro-black bias, unless the author is using Chief Justice Roberts’ language, wherein Up means Down, and Down, Up.
How can claims of anti-black racial discrimination be supported when the tax credits were given to predominantly black home owners? The houses in the neighborhoods are not of themselves able to apply for tax credits; that still needs people to get done!
There will always be a need for fine tuning and the answer to this problem is found scattered throughout all facets of society.
I still need to read this decision so I am commenting generally. The natural inclination of ALL people is to segregate. That is NOT A BAD THING. The word segregation has become misunderstood. In a prison, what uniformed people call “solitary” is actually called segregation. There is disciplinary segregation for those that break the rules of the prison, and there is protective segregation to protect vulnerable inmates. That people segregate in housing, associations, taverns, clubs, is often good. So, while housing discrimination was a horrible problem 50 years ago, and while it still exists today, we must be prudent in placing upon owners of property laws that limit their freedoms.
The next push from the gay culture will be housing and employment protections. This may be a solution looking for a problem. When we owned college rental property we LOVED our gay tenant and wished we had more. I am a voracious reader and have never read of gay people being discriminated in housing. I welcome any reputable sources from anyone in that regard. I don’t know that employment discrimination is a significant problem either any longer, although I’m sure it does exist in some businesses, professional sports being the most obvious. I am quite certain racial discrimination is still worse today than is gay discrimination. And here is the political time bomb. Black folk RESENT the meteoric gains the gay community have achieved. There is a Dem intramural hurricane brewing between the bedrock, longtime, black Dem base, and the newer, more upscale, gay Dem voting block. I think the distractions this WH and Dems are throwing @ black folk lately are because they see the hurricane forming in the warm waters of the Bay of Resentment.
An excellent analysis to a justifiable result. All is not lost.
Fair Housing Acts, ADA, Gay Marriage, are all full employment acts for attorneys. Hopefully you were being sardonic when you use the term “free healthcare.” We small business people know NOTHING IS FREE. For those on the dole, much is indeed free for them, but costly for the producers. And, let this former VISTA volunteer assure those who are new, I know many on the dole need it and deserve it. But, unless there is a secret airborne disability virus sweeping this nation the past 8 years or so, then the usual fraud has grown exponentially.
I and most people I’m sure do it want discriminatory policies and hope for more mixed race communities. However this decision is going to result in chaos.
To no permit property renters to rent to people who might pay the rent is confiscation of their property by government without compensation. To force banks to do the same when granting credit that will result in known losses it likewise the same.
The solution to opportunity for low income people is primarily fixing our horrible schools (school choice, unions whose primary mission is protecting bad teachers).
A policy that does not require the convocation of property is for the government to fund housing vouchers for low income people to have more opportunity to live in better communities. But to force property owners and lenders to make subsidies and to create chaos in the courts after this horrible decision is wrong.
Thank you for a nice summation of the history of this case.
However, I agree with Alito
Justice Alito said this decision will burden the states by allowing a deluge of disparate impact claims to flood the courts. It is going to be chaos. Worse than the frivolous law suits over minor infractions or hypothetical infractions of the ADA. Chaos and costly.
Disparate impact can be purposeful, but most often the outcomes of the “game” are accidental or created by the participants themselves.
As a former banker/loan officer in the 1980’s we had to deal the the Community Reinvestment Act which was an attempt to stop ‘redlining’. https://en.wikipedia.org/wiki/Community_Reinvestment_Act IN order to comply with that law and keep the bank from getting downgraded or unable to expand branches we loan officers were forced to make loans that we KNEW would go bad. To people who had no ability to pay the loans back. Going against every principle of lending and putting the money of the depositors and the stock holders in jeopardy. So…..we did make the loans and then later the bank has to deal with defaults and OREO property to try to unload.
Redlining if done on purpose is a terrible injustice. Making bad loans on purpose is also morally wrong.
I agree that placing low wage earners in one neighborhood area, breeds crime, despair, and does not help the neighborhood to grow, prosper, and develop.
I remember back in the 1970’s, neighborhoods of about 30-40 homes were built in our middle income community. These homes were referred to as HUD, or Low Income Housing. It was originally sold to families with low incomes, in order to give them a financial head start and decent housing. These pockets of low income neighborhood were built throughout our community.
As a result, some of the people were able to live in the neighborhood and later sold that home for a better home and slight financial gain. However, for many of the families who lived there, it was a neighborhood of crime and dilapidation.
Today, those homes have sold several times, but for the most part the neighborhoods are not kept up and have made a negative impact on the once nice community.
What I would like to see is to have developers build a nice community of middle or higher price range homes, but 1 to 5% of the homes would be designated for low to low-middle waged families. These additional homes would be dotted throughout the development. I think we would have less crime and it would give people an advantage for financial growth and family stability.
The only thing I don’t like is, once again, the federal government is overriding the states. It’s and idea that has to come from the people of their state, not the federal government or organizations.
As a rental property owner I can see what the judges are getting at but they also are not see the realities of owning or renting property. I use a high credit score to make sure the renters can pay the rent. And they are more likely to keep they place nice. There is a property that twins mine a block away. They are run by a property management company. They have had nothing but trouble with renters because they will rent to anybody.
The justices need to read Adam Smith.
Cara, I would probably be cast as a liberal, and I am “happy” with the ruling you discuss. However, I think your predilection permeates your article. Perhaps you intended to draw the lines that way, but registering justices as liberal and conservative entirely under estimates the totality that drives each one. It is a stoop to the lowest common denominator. You may have meant that, but it opens you up for side attacks that have nothing to do with the ruling.
Thanks, though, for highlighting this work of the Supremes, for without them, we would not be as unique as we are in the history of mankind.
One truth we will never know: was the work of the Texas legislature known to them at the time that it was enacted? I would bet it was, at least by some of the lobby personnel whom assisted in the drafting of the language (or is that just my predilection showing?). The good fight never ends.