The Supreme Court Must Preserve a Strong and Effective Fair Housing Act

Open, inclusive communities free of discrimination are critical to our national success and central to our values of equal opportunity for all. Our country has made significant progress toward that goal, due in large part to the Fair Housing Act. But much work remains before the Act’s vision is a reality across our nation. That’s why it’s troubling that the U.S. Supreme Court is considering weakening the Act – and why it should think again.

Intentional housing discrimination remains a problem. There are still some real estate agents, landlords, and others who intentionally exclude people because of their race, religion, disability, or other aspects of their identity. But more often these days, local governments and real estate companies engage in unjustified practices that, while neutral on their face, have the practical effect of discriminating against people in search of housing.

In many cities and towns, for example, arbitrary regulations prevent the construction of affordable housing that would lead to more inclusive, diverse communities. And, in many places, apartment complexes fill vacancies only through word-of-mouth, with the result that people of different races or religions never have an opportunity to hear about or seek housing there.

These and other “neutral” practices unfairly cut off some groups of Americans from opportunities like quality schools, jobs, and business possibilities, as well as housing. That’s why, under current law, when a housing policy has the effect of perpetuating racial or other exclusion, and that policy is unnecessary or unjustified, it must be set aside or changed, whether or not the politicians or business people who adopted it were intentionally focused on prohibited discrimination.

As the late Senator Ted Kennedy explained in the debate leading up to the Fair Housing Act’s passage, the inability of people of color to move to higher opportunity neighborhoods has stemmed in part “from a refusal by suburbs and other communities to accept low-income housing,” as well as from “the racially discriminatory practices not only of property owners themselves but also of real estate brokers,” and “the policies and practices of agencies of government at all levels.” The Act was designed to address all of those interrelated challenges.

For decades that prescient approach has helped to foster stronger, more diverse, and more prosperous communities around the nation. But now, the Act’s effectiveness is at risk.

On January 21, the U.S. Supreme Court will hear oral arguments in a case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The case poses the question whether the Fair Housing Act will continue to protect people from all housing policies that discriminate in practice, or only those motivated by an individual’s subjective, intentional bigotry.

The Supreme Court’s decision to take up this question is troubling. Typically, the Court grants review of a legal issue only where the lower courts disagree, or where a lower court has invalidated an act of Congress. None of those circumstances exist here. Indeed, for over 40 years, every appellate court to consider the question has concluded that the Fair Housing Act prohibits unfair and avoidable policies that discriminate in practice – known as disparate impact – as well as intentionally discriminatory decisions. The U.S. Department of Housing and Urban Development, which is charged with enforcing the Act, has taken the same position, recently reaffirming that interpretation in new regulations.

This is the third time the Justices have reached out to hear this issue – the previous two cases were settled by the parties – leading many to conclude that a robust Fair Housing Act is in grave jeopardy. That may be, but it’s not a foregone conclusion. It takes only four of the Court’s nine Justices to grant review, but a majority of five to decide the outcome of a case.

There’s little question that the Court’s four most conservative members (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) would happily weaken the Act. Another four members of the Court (Justices Ginsberg, Breyer, Sotomayor, and Kagan) are likely to favor leaving a strong and effective Fair Housing Act intact. So, as is often the case with civil rights questions, Justice Anthony Kennedy will likely cast the deciding vote, and may write the controlling opinion.

Justice Kennedy is a conservative, to be sure. But he has, in other cases, recognized the fundamental importance of racial integration to America’s future, and the need for proactive efforts to achieve it. In a 2007 school integration case, for example, he wrote that “this nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”

A fully effective Fair Housing Act is clearly necessary to achieving that goal. Let’s hope that Justice Kennedy, and the full Supreme Court, understand that. If not, we’ll be calling on a very different Congress to restore and fortify the Act for the 21st century.

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