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SCOTUS Fair Housing ruling will come back to bite us

SCOTUS Fair Housing ruling will come back to bite us

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.”

You can read the full opinion here.


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Disparate impact as applied to housing, in a Nutshell:

“All your decision are belong to us!”

    Valerie in reply to JPL17. | July 2, 2015 at 10:05 pm

    … retrospect!

      Voyager in reply to Valerie. | July 2, 2015 at 11:39 pm

      Any decision you make can and will be used against you. Welcome to the modern government.

        platypus in reply to Voyager. | July 3, 2015 at 3:39 am

        “You have the right to remain disparate. Any unconscious thought of racism can and will be used against you in a kangaroo court of the plaintiff’s choosing. You have the right to an attorney before questioning, for all the good that’s going to do for you. If you can’t afford an attorney, one will be appointed before we put you in a Vulcan Mind Meld. Do you understand this bull as I have explained it to you?”

I suppose, though, Congress could specifically amend the FHA to reject “disparate impact”. That is, if we had a Congress that wanted to do anything.

Can cities avoid all the federal strings by just stop taking federal housing money?

healthguyfsu | July 3, 2015 at 12:55 am

Someone please explain to me how any of this is even remotely Constitutional.

    platypus in reply to healthguyfsu. | July 3, 2015 at 3:48 am

    They learned it all in Chicago:

    You came to us when nobody else cared. You took our money and you promised to pay us back and do certain … favors for us. Now you don’t want to pay us and you don’t want to do those favors either.

    You have put us in a difficult position. How would it look if we let you slide while everybody else keeps their promises? I sure you understand that it’s nothing personal – we just have to set an example. [boom – short pause – boom]

Kelo the Kennedy Compound!

Yet another baffler from Mr. Justice Kennedy. I have often suspected he has a random method for deciding close cases, something like a Magic 8-Ball™.

The big hidden problem here is it gives federal agencies and HUD bureaucrats an easy excuse to enter consent decrees with plaintiffs to avoid accountability. This method has been used effectively for over 20 years by EPA to avoid the normal rule-making process with public input. Environmental groups sue, EPA settles, judges sign off, new rules overnight.

The gubmint won’t be happy until they appropriate housing from [wealthy?] white suburbanites and redistribute it to inner city residents, especially the illegals. Justice rendered gubmint style. FMCDH. Molon labe.

Justice Kennedy should be forced to live next door to welfare housing filled with punks and thugs.
Oh–and no security protection for Kennedy. None.