For years, civil rights groups have feared that the Supreme Court would hamstring the effort to end racial segregation in housing by ruling that only practices rooted in intentional discrimination violated the Fair Housing Act. But on Thursday, a 5-to-4 majority rightly held that the landmark law also prohibits some policies that have the effect of isolating racial groups even when there is no deliberate bias.
The decision involves a lawsuit by a nonprofit housing organization claiming that a state agency in Texas steered tax credits for the development of low-income housing to black inner city neighborhoods in Dallas. That policy, according to the plaintiffs, even if wasn't designed to segregate the races, nevertheless had that effect and was therefore the “functional equivalent” of intentional racial segregation — and thus violated the Fair Housing Act. The state agency countered that the law didn't authorize “disparate impact” lawsuits.
The Supreme Court disagreed. Writing for the majority, Justice Anthony M. Kennedy placed the Fair Housing Act in the context of other civil rights laws that allow lawsuits based on disparate impact, a concept enunciated by the Supreme Court in a 1971 decision involving employment discrimination and later ratified by Congress (including in amendments to the Fair Housing Act).
In employment cases, once a job test or other requirement has been shown to have a disproportionate outcome on workers of a particular race, the burden shifts to the employer to prove that the requirement is job-related. Likewise, Kennedy wrote, a showing of a racial disparity in a housing program requires an agency or developer to show that a particular policy (such as steering low-income housing to a black inner city neighborhood) is necessary to serve a “valid interest.” Often, Kennedy suggested, that burden will be met. He left open the possibility that a lower court might conclude that the tax-credit program in Texas was reasonable.
The decision preserves a valuable tool for remedying segregation. Kennedy recognized that it's naive to believe all housing segregation can be attributed to conscious bias. Rather, he said, the vestiges of legally mandated segregation remain “intertwined with the country's economic and social life.”
Too often, conservatives on and off the court are blind to the subtler manifestations of discrimination that perpetuate racial injustice and isolation. In his dissent in this case, Justice Clarence Thomas complained: “In their quest to eradicate what they view as institutionalized discrimination, disparate-impact proponents doggedly assume that a given racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside of it.”
But institutionalized discrimination isn't a figment of liberals' imagination. It's a reality that obstructs the achievement of the “color-blind” society conservatives profess to desire. Dismantling such discrimination is a legitimate purpose of civil rights laws, including the Fair Housing Act. The court was wise to recognize that fact.