Supreme Court to Review Fair Housing Interpretation

The Supreme Court will hear oral arguments on Wednesday that may drasticallyrnchange the way in which the 1968 Fair Housing Act has been interpreted.  In the case, Texas Department of Housing and Community Affairs v. The InclusivernCommunities Project, the State of Texas is asking the Court to bar lawrnsuits charging discrimination on the basis of impact rather than requiring proofrnof intent.</p

The suit has been wending its way through the courts since 2008 when InclusivernCommunities, a fair housing organization based in Dallas sued the state agency.   InclusivernCommunities alleged that the state had disproportionally awarded the mostrnimportant federal tax credits for low income housing in areas that already hadrna large populations of both poor and black residents.  Its method of scoring applications for thoserncredits and thus the subsequent awards helped keep those residents from movingrninto mostly white areas. </p

Since the very first suits brought 40 years ago under the Fair Housing Actrnthe courts have tended (with exceptions) to rule that plaintiffs had only tornprove that an action had a “disparate impact” on a protected group rather thanrnthat the action itself had been intentionally discriminatory.  Writing in Forbes Rich Samp explains thernlegal distinctions behind the competing impact and intent theories.  The language of the Fair Housing Act barsrnhousing discrimination “because of” race, color, religion, sex, familialrnstatus, or national origin.”  Samp saysrnthe phase “because of” “suggests volition by the defendant, not merely that therneffects of his actions were felt more strongly by members of protected groups.”  The argument in favor of the disparate impactrnclaim maintains that Congress later expanded the language of the statute byrninaction in the face of court and Executive Branch decisions interpreting thernAct as encompassing disparate-impact claims.</p

During the original trial in Dallas the State argued that there were lawfulrnreasons for its scoring system that favored keeping projects in the heavilyrnminority communities.  InclusivernCommunities could not prove that the pattern over which they were suing hadrnbeen intentionally discriminatory but showed that 92 percent of all low-incomernhousing units were in areas where whites made up less than 50 percent of thernresidents thus proving to the court’s satisfaction that there was a disparaternimpact, a decision upheld of the 5^th Circuit Court of Appeals. </p

SCOTUS has twice before agreed to hear housing cases that might haverndetermined the impact versus intent argument but one suit was withdrawn and thernsecond was settled at the urging of the Obama Administration which fears therncourt is poised to weaken the Fair Housing Act in the same manner it did with thernVoting Rights Act in 2013.  </p

Civil rights groups argue strongly that the disparate intent interpretation ofrnthe law is at the heart of most civil rights legislation beyond housing, includingrneducation and employment.  Businesses,rnincluding the lending industry, argue that the law is misinterpreted and hasrnexacted penalties for actions that were unintentional and forced them to settlernlawsuits at considerable expense.  </p

The court is expected to hand down its ruling in June of this year.

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