Symposium: Fair housing after Ferguson

John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of the respondents in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc.

In Court this morning, I was struck that Justice Anthony Kennedy began with a dose of history in announcing the decision in this case.  The Fair Housing Act of 1968, he explained orally, was enacted at a time of great unrest for the country.  The nation had been “moving towards two societies, one black, one white – separate and unequal,” Kennedy added in his written opinion, and “faced a new urgency” to address these inequities in the days after the tragic assassination of Dr. Martin Luther King, Jr.  Justice Kennedy’s opening remarks, it soon became clear, presaged his conclusion.  This is a historic time for civil rights and today’s ruling was a momentous victory.

I’ve written for SCOTUSBlog before about what disparate impact is, why it is essential, and how historical context shapes our interpretation of the Fair Housing Act.  But it bears repeating, as Justice Kennedy remarked today, that we do not “paint on a blank canvas” here:  There are over four decades of precedent and experience about disparate impact, building upon the Supreme Court’s 1971 decision in Griggs v. Duke Power, which my organization, the NAACP Legal Defense Fund, litigated, and which adopted disparate impact in the context of employment discrimination.  In 2005, the Supreme Court once again embraced disparate impact in the context of age discrimination, with Justice Antonin Scalia penning the plurality opinion in Smith v. City of Jackson, which SCOTUSBlog’s Tom Goldstein argued.  Over the years, all eleven courts of appeals to have addressed the issue affirmed the validity of disparate impact.  Congress too recognized these protections through the 1988 Fair Housing Amendments Act and the federal agency in charge of housing confirmed as much through formal regulations.

Against that backdrop, Justice Kennedy embraced many of the arguments advanced by the Solicitor General and others about how the text, structure, and history of the Act support disparate impact.  Likewise, the normal canons of statutory interpretation augur in favor of maintaining disparate impact.  He even cited Justice Scalia’s own book on legal interpretation as authority.

What caught my eye, on top of all the convincing textual arguments Kennedy analyzes in detail, was his appreciation for the purpose and operation of the Fair Housing Act.  He explains that disparate impact counteracts “unconscious prejudices and disguised animus that escape easy classification as disparate treatment” and “also plays a role in uncovering discriminatory intent.” In this way, “disparate impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”  That adeptly captures how housing discrimination manifests itself in practice today.  Kennedy rightly points out that the vestiges of de jure segregation have persisted and adapted – through illicit practices like redlining, steering, and lending discrimination — wreaking “intertwined” social and economic harms on individuals and neighborhoods, echoing themes we and others have emphasized.  Furthermore, this analysis demonstrates a newfound appreciation for how “disguised animus” and “unconscious prejudices” function in reality – terms which apparently have never been used in a Supreme Court argument before.

Today’s opinion ends on an aspirational note that befits this crucial moment for racial justice in our country. “Much progress remains to be made in our Nation’s continuing struggle against racial isolation,” Kennedy concluded.  Indeed, we need look no further than Ferguson or Baltimore to understand the unfinished business of civil rights and the enduring importance of residential integration.  The Fair Housing Act, he commanded, “must play an important part” in avoiding the creation of “two societies” and the “Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.” That is a wholehearted endorsement of fair housing and the work of civil rights, going forward – and with today’s ruling in hand, we should redouble our efforts towards that worthy goal.