The Fair Housing Act: How fair is Fair?

There was a case argued two weeks ago that I’ll admit I paid no attention to when I created my roster of Cases to Watch in the OT14: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  A woman who teaches a course on social justice in urban areas asked if I knew anything about this case after it popped up on her Twitter feed.  Her students were interested in the impact of the case and, as many of them had just taken my law and politics course and knew the ideologies of the Supreme Court bench, wanted to know more about it so they could make predictions about the outcome.  As an educator and (self-described) specialist of Supreme Court activities, I did a deep dive into researching it in an effort to help with this teachable moment and immediately moved it into the top five cases to watch this term.

This is a case about a specific part of the Civil Rights Act of 1968, that iconic piece of legislation signed one week after Dr. King was shot, called the Fair Housing Act (FHA).

Lyndon Johnson signed the legislation into effect to make sure King’s dedication to creating equitable access to vote and to end discrimination, common in communities where white flight had produced segregated towns and cities, was not in vain.  Title VIII of the FHA prohibits discrimination in the sale, rental, and financing of dwellings based on the race, color, religion, sex, or national origin.  Twenty years later, Congress reaffirmed the FHA and added disability and familial status (pregnancy of occupant, number of children under 18) to the list of prohibitions.  In addition, the 1988 law gave more powers to the Department of Justice to bring suit on behalf of victims.

This case is similar to Hobby Lobby and Shelby County in that the justices will be evaluating the text of a statute, or law, rather than a constitutional question about searches, seizures, or free speech.  In those two cases, the Religious Freedom Restoration Act (RFRA) of 1993 and the Voting Rights Act of 1965 were the two statutes in question.  This Texas case serves as an opportunity for the SCOTUS to test the strength of old legislation using a modern challenge.  It’s worth noting that more time has elapsed since the FHA was reviewed and augmented than the time between its inception and the 1988 review.

The purpose of the FHA is to protect people from being denied housing because of the discriminatory actions by landlords and homeowners.  This weekend I caught up on Slate’s Amicus podcast hosted by Supreme Court reporter and writer Dahlia Lithwick.  Lithwick interviewed Sherrilyn Ifill, an attorney with the NAACP, who said proving a landlord has intentionally discriminated against someone is nearly impossible. It sometimes takes a case as extreme as that of former NBA Los Angeles Clippers owner Donald Sterling’s videotaped confession, in which he admitted he never rented any of his numerous properties to African-Americans, to prove intentional discrimination.

Of course, this kind of evidence of discrimination is very rare and difficult to procure.  The more common forms of discrimination are cancelled appointments, no-shows to apartment showings, convoluted application forms, or requirements that applicants have unreasonably high credit scores.  The aforementioned are common race-neutral practices in which the intentions are not overtly discriminatory but the outcomes consistently result in white tenants.  Such practices perpetuate segregation in that they marginalize minority tenants to areas predominantly inhabited by minorities, as is the case in the suburbs of Dallas, where this case derived.

Michael Daniel and U.S. Solicitor General Donald Verrilli argued in support of The Inclusive Communities Project that the Texas Department of Housing’s practice of  “distributing federal tax credits for low-income housing in a way that disproportionately affected minorities” is perpetuating racial segregation and though such practices do not rise to the level of intentional discrimination result in racial segregation the FHA was created to legally challenge.  Scott Keller, Texas’ Solicitor General, argued that if Congress intended to allow disparate impact cases they would’ve articulated exactly those words in the 1988 reauthorization of the FHA.  To allow such cases would open the floodgates to anyone who wanted to challenge any seemingly insidious discriminatory business practices of landlords and homeowners in courts.

There are some interesting facts associated with this case.  First, according to reporters inside the Court during oral arguments, Scalia had arduous and cantankerous questions for both sides.  With the four liberal justices challenging Texas and Roberts, Alito, and the always silent Thomas likely siding with the state, this case has a high probability of being one in the small pool of 5-4 decisions this term.  [Only ten cases resulted in 5-4 decisions last term.]  Finally, and also worth noting, this is the third time the Court has taken a housing case in the last three years, but the first time they actually got to hear it.  The previous two cases were both settled before oral arguments. It’s clear at least four of the justices on a bench often revered for its pro-business decisions have something to say about recent interpretations of the Fair Housing Acts.