Editorial: Discrimination is discrimination even if it’s not intentional

In an ideal America, it might be appropriate for the law to concern itself only with racial discrimination that is overt, conscious and deliberate. In the real America of entrenched racial inequality, Congress and the courts rightly have recognized that it’s also necessary to address policies that have the effect of marginalizing minorities even if that isn’t the intention.

But long-standing efforts to combat subtler examples of discrimination are in danger of being undermined by a Supreme Court that sometimes has seemed oblivious to the persistence of racism and inequality.

On Wednesday, the justices were urged by lawyers for the Texas Department of Housing and Community Affairs to hold that, unlike other civil rights laws, the 1968 Fair Housing Act targets only intentional discrimination and not policies that have a “disparate impact” on minorities. The case before the court involves a claim that the
department steered tax credits for the
construction of low-income housing to minority neighborhoods in the Dallas metropolitan area, perpetuating residential segregation.

The nonprofit housing organization that is suing the state convincingly countered that the Fair Housing Act does allow disparate-impact suits. At Wednesday’s argument even Justice Antonin Scalia, a longtime critic of the disparate impact concept, noted that the amendments that were added to the law in 1988 suggested that Congress was authorizing some disparate-impact claims.

The principle that unintentional discrimination can violate civil rights laws was originally enunciated by the Supreme Court in a 1971 decision involving employment discrimination. In that case, a power company had administered a test that disproportionately excluded black job applicants. The court ruled that, once disparate impact was established, the burden shifted to the employer to prove that the test was truly job-related.

Similarly, under regulations promulgated by the U.S. Department of Housing and Urban Development, when a housing policy is shown to have a disparate impact on minorities, it can be justified only if it serves a substantial, nondiscriminatory interest and only if that interest can’t be furthered in a less discriminatory way.

This is a reasonable and nuanced response to the fact that while residential segregation in the U.S. has declined, black Americans still live apart from whites in significant numbers as a result of myriad factors, including exclusionary zoning, poverty and countless transactions rooted in racial bias but difficult to prove in a court of law. As Justice Ruth Bader Ginsburg observed: “There was a grand goal Congress had in mind. It meant to undo generations of rank discrimination.”

Disparate impact actions are an important tool in dismantling the infrastructure of housing segregation. The court should leave them in place.

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