For the larger part of the 20th century, housing discrimination in the United States was overt and unambiguous. Racial segregation was largely the norm, and those who worked to preserve it were under little obligation, legal or social, to hide their intentions. At least it was easy to spot:
Across the street from a federal housing project built for black residents of Detroit in 1942. (Photo via Arthur S. Siegel/Library of Congress)
Help came in 1968 with the federal Fair Housing Act, which prohibited racial discrimination in the sale, rental and financing of homes. The law explicitly barred practices with a discriminatory intent.
The country has progressed since the late ’60s, and blatant prejudice is now much less common. Yet housing discrimination persists, often due to bias built into the system. So over the years, the federal courts have expanded the Fair Housing Act to cover practices with a discriminatory outcome. Under this theory, known as “disparate impact,” a policy or practice can be illegal if it disproportionately affects minorities, regardless if that was its purpose. Disparate impact claims are crucial to fighting racial inequality today.
But this key weapon could soon be taken away. The Supreme Court will likely rule this summer in a case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, that may forbid disparate impact claims under the Fair Housing Act. Such a decision would effectively defang the law. It would also shed a disturbing light on how this court believes the law should react to entrenched discrimination.
The underlying reality of the Texas case is that certain housing policies disadvantage minorities more than whites, whether by hidden design, careless disregard or unfortunate coincidence. It’s this type of discrimination — in housing, but also employment, voting and education — that today produces some of the biggest barriers to bridging the racial divide. If the Supreme Court acknowledges this truth and believes justice is best served by fostering equality “in fact, and not simply in form” — to borrow a phrase from Justice Ruth Bader Ginsburg — its decision should be easy. That it probably won’t be helps explain why racial inequality remains such an unrelenting problem for the nation.
Here’s what you need to know about the case, its history and why it could be a landmark decision:
In the past, property owners and policymakers openly supported segregation.
During the first half of the 20th century, racially restrictive covenants were commonly used to keep minorities from moving into white neighborhoods. Under these private agreements, property owners would stipulate that their land could not be sold to or occupied by anyone who wasn’t white. Sometimes, a group of neighbors would sign a contract prohibiting all current and future owners of their properties from selling or leasing to African-Americans. Violating the contract could lead to forfeiture of the property.
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A Supreme Court ruling against disparate impact would cap a string of controversial civil rights decisions.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts wrote in a 2007 decision on school desegregation in Seattle. That sounds simple enough, but such a focus on explicit racial preferences overlooks the issues of structural discrimination — the kind found in housing and other areas today.
In 2009, the Supreme Court declared that New Haven, Connecticut, had violated the civil rights of white firefighters when it threw out a promotion exam that no black firefighter had passed. The city took the racial gap in exam results as a sign that the test itself might violate employment protections under the Civil Rights Act, but the court ruled against New Haven. In 2013, the Supreme Court gutted a key section of the Voting Rights Act that determined which states had to obtain pre-approval from the federal government before making changes to their voting systems. And last year, the justices upheld a Michigan ban on affirmative action, declaring that a state’s voters can prohibit the use of race as a factor in college admissions.
As ProPublica noted, a ruling against disparate impact claims this year would give the Roberts Court a dubious hat trick: It would have effectively undermined the three most substantial civil rights laws of the 1960s — the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act.
Whatever the Supreme Court decides in the current case, some of the justices are clearly unconvinced that discrimination not driven by overt bias is a problem, or at least one that the law should take a stand against.
Justice Sonia Sotomayor spoke to this troubling pattern last year in her dissent in the Michigan affirmative action case. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” she said, responding to Roberts’ quote from seven years earlier.
Sotomayor, one of only two racial minorities on the high court, chose to read aloud her dissent, something the justices do only when they feel particularly strongly.
A ruling in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is expected sometime in June.
