For four years, civil rights advocates have struggled to keep the Supreme Court from eliminating a key prong of federal fair housing law. This year, their luck is probably going to run out. On Wednesday, the Supreme Court will hear oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case that could leave many victims of housing discrimination unable to win their case in court. Based on the justices’ unusual eagerness to hear the issue presented by Inclusive Communities, their decision is likely to end badly for civil rights.
Nearly half a century after President Lyndon Johnson signed the federal Fair Housing Act, which bans many forms of discrimination in housing, racial discrimination remains a serious problem in the housing market. A study on behalf of the Department of Housing and Urban Development determined that black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than white houseseekers, even if they have similar credit or housing interests. During the subprime lending boom, black borrowers with good credit were 3.5 times as likely as whites with similar credit scores to receive higher-interest-rate loans. Latinos were 3.1 percent times as likely to be shunted into such loans. In 2009, the Federal Reserve determined that, even when controlling for income and similar criteria, African Americans were twice as likely to be denied a loan altogether.
One reason why housing discrimination persists is that it is difficult to root out. Landlords, homeowners and banks typically do not advertise their racist motivation when they refuse to do business with someone because of their skin color. Often, people of color are simply left to wonder why they did not get to move into the home they wanted. To help uncover hidden discrimination, victims of housing discrimination may file what are known as “disparate impact” discrimination cases. In essence, these cases allow a plaintiff to prove discrimination based on statistical evidence without having to uncover a smoking gun document where the defendant says “I did this because I don’t like racial minorities.” Thus, for example, if a housing discrimination plaintiff can show that a lender’s policy led to the average minority borrower being hit with significantly more fees than similarly situated white borrowers, that can be enough to show disparate impact.
The Justice Department wielded disparate impact lawsuits to great effect against lenders accused of race discrimination. In a suit against the mortgage lender Countrywide, for example, the company agreed to pay $335 million to settle claims that it “charged higher fees and rates to more than 200,000 minority borrowers across the country than to white borrowers who posed the same credit risk.” In one year, for example, the Justice Department found that “Countrywide employees charged Hispanic applicants in Los Angeles an average of $545 more in fees for a $200,000 loan than they charged non-Hispanic white applicants with similar credit histories.” Yet, without the ability to bring a disparate impact suit, it is far less likely that the Justice Department could have prevailed in this case.
Eleven of the twelve federal appeals courts that have jurisdiction over fair housing claims have held that disparate impact suits are authorized by existing law (the twelfth, the United States Court of Appeals for the District of Columbia Circuit, has not yet considered the question). Yet, despite this consensus among federal appeals courts, the Supreme Court took a case in 2011 claiming that disparate impact housing suits are not allowed. The fact that the justices reached out to take this case when every single federal appeals court to consider the question had reached the same decision was widely viewed as a sign that the Court’s conservative bloc was eager to change the law. Future Secretary of Labor Tom Perez, who was then a senior Justice Department official, helped broker a settlement that kept the Supreme Court from deciding this first case.
In 2013, a similar settlement agreement kept the Supreme Court from deciding the issue again.
Now, however, the issue is before the justices once again. There can be little doubt, based on the Court’s repeated decisions to take up this issue, that the justices are eager to decide the case. Given the Roberts Court’s general skepticism towards civil rights claims, the future of federal fair housing law is probably going to look very bleak for victims of discrimination.0