Social engineering through a social justice lens
When the Supreme Court handed down its ruling in Texas Department of Housing v. Inclusive Communities Project last week, social justice activists claimed a major victory in the battle against segregated housing. The decision endorsed a “disparate impact” analysis as applied to a Texas program that plaintiffs claimed distributes federal low income housing credits disproportionately, awarding too many credits to inner-city, predominately black neighborhoods and too few to suburban, predominately white neighborhoods.
The Inclusive Communities Project, plaintiffs to the case, said that the government had actually caused continued racial segregation in the Dallas area via its credit allocation program, and sued to force the State of Texas to alter their selection criteria to encourage the construction of low income housing in suburban communities. The playing field changed mid-posture when the HUD secretary issued a regulation interpreting the Fair Housing Act to encompass disparate impact liability and instituted a burden-shifting framework that would make it easier for plaintiffs trying to prove instances of subtle discrimination.
Regulatory tango aside, ICP’s argument won at the Supreme Court in a 5-4 decision authored by Justice Kennedy and joined by the usual, left-leaning suspects.
Back in January, Tulane Law prof Stacy E. Seicshnaydre and Inclusive Communities Project board member laid out better than I could the social justice argument that the plaintiffs brought to the Court:
Now, the state raises the specter of constitutional violations (among other concerns) as a means of obliterating the disparate impact standard in all FHA cases for all time. The state argues that disparate impact theory requires entities to consider the racial impact of their practices and take race-based action. The state argues that disparate impact theory must be rejected to avoid serious constitutional questions.
But the state is wrong. That argument ignores the actual facts of FHA cases and certainly ignores the facts of the ICP case. Noticing the exclusion of protected groups from opportunity-rich places and implementing race-neutral methods of opening access to such places is on firm constitutional ground. Those who argue otherwise are promoting a form of color-blindness that assumes separate is equal: we must ignore racial isolation, and governments must affirmatively ignore the segregating and exclusionary effects of their activities. Moreover, the argument goes, we must reject any race-neutral, inclusionary activities if they are designed to address prior exclusionary activities. Justice Anthony Kennedy is unlikely to embrace this extreme form of color-blind reasoning.
The majority slipped and face planted in this policy argument, but even Kennedy had to admit that his decision could have serious consequences:
Writing for the majority, Justice Anthony Kennedy noted that by allowing these so-called disparate-impact claims under the Fair Housing Act, “there is a danger that potential defendants may adopt racial quotas.” Realistically, this is all but certain.
Housing authorities already make decisions about where to build based on how best to avoid a discrimination lawsuit, not necessarily where the housing is most needed. With the Supreme Court’s help, the Fair Housing Act is well on its way to becoming a vehicle for advancing what it originally was intended to prohibit—race-conscious housing decisions.
In his dissent, Justice Alito used anecdotes to point out the absurdity of the majority’s thinking:
Justice Samuel Alito, in a separate dissent, argued Congress never specifically authorized “disparate impact” claims. He mentioned an earlier case involving the Fair Housing Act and attempts by the St. Paul, Minnesota, to purge a housing development of rats resulted in higher rents that disproportionately affected minorities.
“Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit,” Alito wrote.
And fear they should—that’s the nature of disparate impact.
The Obama Administration has used this tactic to attack public service organizations and schools, under the guise of improving conditions for protected minority classes; the actual consequences, however, actually do more to harm than help these minorities. I came down firmly with Justice Clarence Thomas on this decision, who believes that disparate impact analysis itself is on legally shaky ground, and has described the effort to create equality in results as a “fool’s errand.”
Kennedy and the majority endorsed a form of social engineering just as pernicious as those that disparate impact analyses aim to correct. Instead of creating “more equality,” these methods do nothing but invent controversies for social justice groups and the courts to work out, and, as Clarence Thomas says, presume that defendants are “guilty of discrimination until proved innocent.”
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