Texas Leading The Charge For The "Right To Discriminate"

In less than 24 hours, the Supreme Court will hear a case that will define the future of decades-old legal protections against discrimination by landlords and banks against renters and homebuyers. The decision could have far-reaching consequences for the battle against housing policies that discriminate on the basis of race, sex, religion, disability, and other protected characteristics. And that, in turn, would have profound implications for efforts to ensure fair and unbiased policing in places like Ferguson and New York City and throughout the country.

Passed in 1968, the Fair Housing Act is one of the major legislative victories of the civil rights movement. It has helped rid our country of the most overt forms of housing discrimination, such as building single-race housing developments and using lending maps that demarcated black neighborhoods as mortgage-free zones.

But discrimination hasn't gone away – instead, it has subtly morphed, preventing us from creating truly diverse communities.

The most harmful contemporary instances of discrimination can take several forms. Sometimes policies that are neutral on their face interact with entrenched segregation – typically the vestiges of prior intentional discrimination – to reinforce exclusionary policies. For example, zoning regulations that prevent the construction of mixed-income housing in overwhelmingly white areas often have the effect of excluding non-white families. In other instances, policies create conditions where individual landlords or mortgage brokers apply ingrained stereotypes or implicit biases to treat individuals differently based on race, even if that was not the intent of the underlying policies. And, of course, discriminatory policies are sometimes the product of outright racial bias that a perpetrator knows better than to broadcast explicitly so that the intention to discriminate remains disguised.

The FHA's most effective provision for addressing these contemporary forms of discrimination is a legal rule that has held sway for 40 years – the idea that unlawful discrimination is not limited to cases where a plaintiff can prove that a defendant acted with conscious intent to discriminate. Instead, the FHA recognizes the idea of "disparate impact." Under the disparate impact approach, a practice constitutes discrimination if it disproportionately harms a protected class – like racial minorities – and the defendant – typically a landlord or bank or municipality – didn't need to use that practice, or could have done something different that would have avoided the discriminatory effect.

The disparate impact approach has been indispensable in rooting out housing discrimination precisely because it identifies and confronts discrimination that results from hidden, unconscious biases and practices that perpetuate the effects of past, intentional discrimination. But in the case currently before the Supreme Court,Inclusive Community Partners v. Texas Department of Housing and Community Affairs, the state of Texas has asked the justices to rule that disparate impact claims are not available under the FHA. The case involves a challenge to Dallas' system for allocating low-income-housing vouchers in a way that reinforced patterns of residential segregation.

As many advocates and observers have argued in anticipation of this case, the disparate impact standard is crucially important to guaranteeing fair housing opportunities and diverse communities (for examples, see here, here, here, here, andhere). One of the reasons that objective is so important is that there is often a profound connection between discrimination in housing and discrimination in other areas of American life. It's well-established that where you live determines in large measure what opportunities you'll have and how you'll be treated.

Policing is a prime example.

Recent activism across the country, propelled by widespread outrage over repeated instances of police killing unarmed black men, has aimed at reforming racially biased policing. Events in Ferguson actually underscore how housing segregation can lead to racialized policing, in all its tragic dimensions. The racial landscape of the St. Louis region didn't occur naturally. Rather it was the product of decades of efforts to impose residential segregation, enforced through a brutal cocktail of federal, state, and local policy as well as private acts of discrimination.

Indeed, a recent report by the Economic Policy Institute provides a nuanced history of those programs of discrimination. In depressing detail, it describes the many layers of governmental and private actions that erected often impenetrable boundaries separating communities based on race. The tragic killing of Michael Brown has helped to expose racialized policing in predominantly black areas, including data showing that police in Ferguson were twice as likely to search blacks as whites after initiating a stop, even though whites were far more likely to be found with contraband.

The connection between racialized space and racialized policing shouldn't be surprising. Intensive residential segregation very often leads to concentrated poverty, a lack of municipal services, and failing schools – all of which contribute to an increase in certain crimes while also breeding stereotypes about disorder and criminality. These dynamics contribute significantly to the biased policing in predominately black or Latino neighborhoods. At the same time, the existence of identifiably black and white spaces leads to unfair targeting of minority individuals who happen to be in predominately white neighborhoods, especially the nonwhite residents of neighborhoods.

None of this is unique to St. Louis. For example, a recent ACLU study on Boston's stop-and-frisk policies found that "a neighborhood's concentration of Black residents drives the rate of police-civilian encounters." In other words, even after statistically controlling for crime-related factors – including neighborhood crime rates – preliminary expert analysis of the Boston Police Department's own data found that the racial composition of a neighborhood predicts how many police encounters will take place there. A statistical analysis submitted to the court as part of the challenge to New York City's stop-and-frisk program found similar patterns.

And that brings us back to the future of the Fair Housing Act. The FHA has for decades provided the most powerful legal tools available for dismantling residential segregation. It has done tremendously important work, but that work is not done. When it comes to addressing housing discrimination in its current forms, the disparate impact standard is an absolutely indispensable tool. It smokes out covert intentional discrimination. More profoundly, it allows courts to carefully scrutinize policies that perpetuate patterns of segregation to determine whether they can be justified.

Removing this pillar of civil rights law would set back equal housing opportunity in dramatic ways. It would also set back the movement to reform bias-based policing at exactly the wrong moment.