Symposium: Romney was right about disparate-impact

Myron Orfield is Professor of Law and Director of the Institute on Metropolitan Opportunity at the University of Minnesota.

Is there a disparate-impact cause of action arising under the Fair Housing Act?

George Romney and John Mitchell thought so. As Richard Nixon’s HUD secretary and attorney general, they brought the case that persuaded the Eighth Circuit: United States v. City of Black Jack, in 1974. Today, the eleven federal circuits to consider the question have unanimously agreed with Romney, and with Nixon’s Justice Department. A federal rule states there is a Fair Housing Act disparate-impact cause of action. Finally, the Supreme Court in Griggs v. Duke Power Company, per that racial radical Warren Burger, found a disparate-impact cause of action under Title VII and, more recently in Smith v. City of Jackson, the Age Discrimination in Employment Act – two statutes with language that mirrors the Fair Housing Act.

Title VII and the ADEA prohibit (1) intentional employment discrimination and (2) “otherwise adversely affecting” an individual’s employment status because of his or her protected classification. The Fair Housing Act prohibits (1) intentional housing discrimination and (2) “otherwise making housing unavailable” to an individual because of a protected classification. Not only have Romney, Nixon’s Justice Department, and eleven circuits determined that these parallel phrases mean the same thing, so has HUD – an essential fact because Chevron holds that courts must defer to its interpretation of the law if it is based on a “permissible construction of the statute.”

Texas argues that the Nixon administration, the courts of appeals, and the existing federal rule not only erred when they all determined that “otherwise making housing unavailable” to protected classes “adversely affected” these individuals, but that their unanimous conclusion was not even “a permissible construction of the statute.”

The Fair Housing Act was the last, and legislatively most difficult, landmark civil rights law of the 1960s. It was the goal of Martin Luther King’s last campaign, to address the conditions that had led to hundreds of riots in segregated neighborhoods throughout America. These riots had been caused, said a bipartisan presidential commission, by residential segregation. King was assassinated on April 4, 1968, rioting intensified, and the Fair Housing Act became law exactly one week later. It was a promise by Congress and the president to end segregation. Only such a promise, it was believed, would stop the violence.

The Fair Housing Act was a bipartisan accomplishment made possible in part by the nobility and humanity of Republicans like Everett Dirksen, presidential candidate Richard Nixon, and a young congressman, George H.W. Bush of Texas, who bravely voted for the bill even through it was fiercely opposed by his constituents.

As the Supreme Court held in Trafficante v. Metropolitan Life Insurance Company, the law’s drafters designed these tools not only to prevent housing discrimination against individuals, but as a means of attacking and dismantling residential racial segregation.

Housing and educational segregation in this country remains stubbornly persistent, particularly in areas where African Americans form a large share of the regional population. Hispanic segregation in housing and schools is growing much worse each decade, and catching up with black segregation. In Swann v. Charlotte-Mecklenburg Bd. Of Education, Chief Justice Burger, writing for the Court, correctly acknowledged that housing segregation and school segregation are interdependent and reciprocal: housing segregation causes segregated schools, which in turn worsens residential segregation.

We know that housing segregation is not primarily caused by individual choice or incompatible racial preferences, but instead by racial discrimination. This discrimination is persistent, multi-level, and arises from at least six different sources: three private and three governmental. First, at the individual level, implicit bias remains deeply ingrained, and forms an insidious, invisible backdrop for other forms of discrimination. Second, non-white families face discrimination by creditors. Banks, for instance, deny loans to black families earning $157,000 per year more often than they deny loans to white families earning $40,000 a year. Third, real estate agents steer middle-class black and Latino families to integrated parts of the suburbs, and white families away from those same neighborhoods.

Half of blacks and Latinos, and two-thirds of their respective middle classes, live in the suburbs. Yet, because they cannot access the same credit as whites with comparable incomes and educations, and because they are steered away from white neighborhoods by real estate agents, they are consigned to suburbs that are inevitably in transition and decline. In these suburbs the fourth cause of housing segregation, gerrymandering of school attendance boundaries, has become the norm. As the Supreme Court found in Swann, this form of gerrymandering not only hurts children, but it also polarizes housing markets, making the white school attendance areas more valuable (and hence more credit-worthy) than nearby integrated ones.

These racial lines are calcified by the fifth cause of segregation: the exclusionary zoning that continues unabated in white, affluent suburbs, preventing private markets and governments from building apartments and affordable housing. Exclusionary suburbs will frequently attempt to justify their practices with racially neutral arguments, maintaining that only expensive housing development can keep local property taxes low.

Finally, segregation is entrenched by government-subsidized affordable housing development, where project placement remains as segregated as it was in the early 1970s. This is despite rules from the federal courts and George Romney’s tenure at HUD, which presumptively prohibit the siting of affordable housing in majority non-white and racially transitioning neighborhoods.

Each discriminatory entity or individual inevitably argues that it is not discriminating – or not much – and that that the real discrimination arises from one of the other silos of government or private activity. Plaintiffs do not have adequate resources to join all the actors, nor the capacity to simultaneously confront multiple businesses and layers of government. In such a complex system of interactions, lawyers have little trouble framing acts that perpetuate segregation in neutral terms. Republican Senator Charles Percy of Illinois said it most simply when he opposed the addition of an intent requirement to the Fair Housing Act: “I maintain this proof would be impossible.”

Conservatives like Romney, Dirksen, Burger, Potter Stewart, and Harry Blackmun supported the Brown v. Board of Education decision, believed that segregation was inherently unequal, and actively worked to create a more integrated society. Working with pro-integration leadership of both parties, and weathering the bitter opposition of Brown’s foes, they were instrumental in creating legal tools, like the disparate impact standard, which have been used for decades to make our schools and neighborhoods fairer and more integrated. Yet even with these tools, progress on integration has been slow, and much of it has been rolled back by more recent court decisions and weak enforcement of the law. If the Supreme Court holds that there is no disparate-impact cause of action under the Fair Housing Act, it will remove the single most effective tool available to fight discrimination and segregation.

I can’t believe Justice Kennedy will allow this to happen.

In Parents Involved v. Seattle School District No. 1, Justice Kennedy eloquently wrote:

Our nation from its inception has sought to preserve and expand the promise of liberty and equality on which it was founded. … [O]ur tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter: the reality is that too often it does….

This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all . . . . A compelling interest exists in avoiding racial isolation.

Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. …

Elsewhere in the same opinion, Kennedy wrote:

To the extent [Chief Justice Roberts] suggests that the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that “our Constitution is colorblind” was most certainly justified in the context of his dissent in Plessy v. Ferguson. The Court’s decision in that case was a grievous error and took far too long to overrule. . . And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

If Justice Kennedy truly believes that the United States “has a moral and ethical obligation to fill its historic commitment to creating an integrated society that ensures equal opportunity for all,” and if he truly believes that our government does not have to accept the “status quo of racial isolation,” he shares those beliefs with the many great conservative lawmakers and judges who thought the disparate-impact standard was necessary “to go beyond present achievements, however significant” and “recognize and confront the flaws and injustices that remain.” Can Kennedy agree that theirs was not a “permissible construction of the statute?”

I don’t believe it for a minute. In Parents Involved and elsewhere, Justice Kennedy has shown himself to be a great American conservative supporter of Brown and integrated society in the tradition of Dirksen, Romney, Burger, and Blackmun.