This piece comes to us courtesy of Stateline. Stateline is a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy.
Many cities and states fear the U.S. Supreme Court is about to strike down a provision of the 46-year-old Fair Housing Act they have frequently wielded as a weapon against racial discrimination.
For decades, cities, states and fair housing advocates have used the law’s “disparate impact” rule to challenge zoning rules, lending practices and other housing-related policies. Under the rule, plaintiffs don’t have to prove that a particular policy or practice is intended to produce a discriminatory result; they only have to prove that it does.
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The case could turn on either a technical reading of the Fair Housing Act, or more broadly on the justices’ willingness to give leeway to officials seeking to root out discrimination. Advocates are most worried about the justices taking a broad approach, given the court’s recent rulings chipping away at affirmative action policies and the Voting Rights Act.
Though he concedes he may be politically naive, Orfield said he isn’t worried. He pointed out that the disparate impact doctrine has been around for decades, and has its roots in the Nixon administration. He questioned whether a moderate like Justice Anthony Kennedy — the crucial swing vote on the court — would move to strike it down.
“It’s not radical. It’s a very sensible, necessary tool,” he said.
