Will “Disparate Impact” Finally Bite The Dust?

The Supreme Court has just announced that it will hear Texas Department of Housing and Community Affairs v. Inclusive Communities Project, which gives it the opportunity, finally, to consider directly the question of whether it is possible to be found liable for racial discrimination even in the absence of any discrimination “because of” race. If you think the answer to that question is obvious, you haven’t met the “disparate impact” theory of discrimination.

“Finally,” because the last time the Supremes were about to consider this question the Obama administration bribed the City of St. Paul, Minnesota, to drop the case. As John Fund and Michael Flynn explained in National Review, the case, Magner v. Gallagher,

involved slumlords who claimed that the city of St. Paul, Minn.’s attempt to improve the terrible conditions in rental properties through its housing code had a disparate impact on African Americans. Despite a lack of evidence of discriminatory intent, the Eighth Circuit sided with the landlords, a terrible result not just legally but from the standpoint of public health and safety.

After the Supreme Court agreed to hear the Magner case, Thomas Perez, the former attorney general for civil rights at the Justice Department and the current labor secretary, engineered a quid pro quo deal to get it out of the hands of the justices. St. Paul dismissed the pending case in exchange for the Justice Department’s agreeing to forgo pursuit of two False Claims Act claims against the city for false certifications in connection with obtaining federal housing grants. Those claims could have recovered as much as $200 million for American taxpayers.

In the Obama administration “civil rights” means siding with slumlords over black tenants when one of its pet theories — in this case, disparate impact — is at risk, just as it meant the Holder “Justice” Dept. striving to keep black students in Louisiana captives in failing public schools because it viewed the state-provided vouchers that would have allowed them to escape a threat to its warped view of “integration,” a travesty of justice condemned even by the editors of the Washington Post.

Disparate impact, as most readers know, means that one can be guilty of racial discrimination even if one doesn’t discriminate “because of” race, i.e., if a racially neutral policy has a disproportionate effect on a favored minority group. I keep putting “because of” in quotes because that is the standard, the definition of discrimination, that is employed throughout the federal Fair Housing Act, which prohibits “Discrimination in sale or rental of housing and other prohibited practices,” thus making it unlawful, to pick a few examples (emphasis added in all):

  • To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
  • To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
  • To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
  • To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
  • In General.–It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.
  • Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with … (a) any person because of his race, color, religion, sex, handicap … familial status … or national origin and because he is or has been selling, purchasing, renting, financing occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings; or (b) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from(1) participating, without discrimination on account of race, color, religion, sex….
  • etc.

Needless to say — well, except to “civil rights” activists and their agents in the Civil Rights Division of Democratic and, alas, even Republican administration Justice Departments — policies that are not adopted “because of” race — such as requiring credit checks — should not be regarded as racial discrimination under the Fair Housing Act. But they have been. Now, thanks to the exemplary legal work of the Pacific Legal Foundation — whose successful brief requesting certiorari was joined by the Center for Equal Opportunity, the Competitive Enterprise Institute, the Cato Institute, the Individual Rights Foundation, the Reason Foundation, and Project 21 — the Supreme Court can, if it chooses, put an end to preference-pushing, quota-mongering “disparate impact” housing policy. PLF provides a brief summary of the current case here.

ADDENDUM

Case materials and filings are collected by SCOTUSblog, here.

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