The Supreme Court took its first limited steps against residential segregation long before it moved to desegregate public schools. But the court’s rulings did not prevent federal, state, and local governments from establishing policies in the mid-20th century that redlined African Americans into racial ghettos while helping to subsidize white neighborhoods in cities and suburbs.
The court struck down local ordinances aimed at enforcing residential segregation in separate cases in 1917 and 1927 and followed in 1948 with a ruling that barred courts from enforcing racial covenants in housing. The court in 1968 went so far as to rule that racial discrimination in housing had been illegal for more than a century under the Civil Rights Act of 1866, which guaranteed blacks the same property rights as enjoyed by whites.
Months before that ruling, however, Congress had passed and President Lyndon B. Johnson had signed a comprehensive law, the Fair Housing Act, to bar discrimination in housing on the basis of race or other categories. As Justice Ruth Bader Ginsburg aptly remarked last week [Jan. 22], the law was intended to undo “generations of rank discrimination.” A half-century later, the Roberts Court could be on the verge of unsettling well established precedents to limit the use of the law to prevent housing policies that have discriminatory even if unintentional effects on African Americans and other minorities.
Ginsburg’s comment came during an hour of legalistic arguments in a closely watched case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. The case tests whether the Fair Housing Act applies not only to intentional discrimination but also to so-called “disparate impact” cases. (Think: “discriminatory effects.”)
The Roberts Court has been eager to decide this issue, even though 11 federal courts of appeals have been unanimous in recognizing disparate impact liability under the law. Twice in the last three years, the court agreed to hear cases on the issue, but the Obama administration and civil rights groups helped to get the cases settled in order to remove them from the court’s docket.
In the current case, the Dallas-based Inclusive Communities Project, which seeks to promote housing opportunities for minorities, has sued the state’s housing agency for allegedly concentrating federal subsidies for low-income housing in minority neighborhoods. The state says the statistical disparity results from applying a laundry-list of racially neutral factors. With a trial still pending, Texas’s Republican state government asked the Supreme Court in effect to knock out the legal theory of the project’s suit.
Chief Justice John G. Roberts Jr. left no doubt about his inclinations in the case in the few questions that he put to lawyers representing the Obama administration and Dallas group. Roberts suggested that the state agency faced an insoluble dilemma: it could be sued for fortifying segregation by subsidizing developments in minority neighborhoods or for denying housing opportunities for minorities if it backed development in white neighborhoods.
As Roberts posed the issue, the state could not cure any problem except by taking race into account, and the chief justice is on record as opposing any race-conscious remedies in civil rights cases. “The way to stop discrimination on the basis of race,” Roberts famously wrote in a school desegregation case in 2007, “is to stop discriminating on the basis of race.”
Surprisingly, Roberts’s ability to hold the usual conservative majority appears to turn on Justice Antonin Scalia, who posed tough questions to Texas’s solicitor general Scott Keller during his time at the lectern. Keller’s argument turned in part on differences between the Civil Rights Act’s job discrimination provisions, which have been interpreted to cover disparate impact cases, and the language in the housing law.
Scalia, co-author of a book on statutory interpretation, said Keller was ignoring 1988 amendments to the law that appeared to assume it covers disparate-impact cases. “Why doesn’t that kill your case?” Scalia asked. “When we look at a provision of law, we look at the entire provision of law, including later amendments.”
Later, however, Scalia seemed to be his normal self when he questioned Michael Daniel, the lawyer representing the project. “Let’s not equate racial disparity with discrimination,” Scalia said.
Other justices appeared to be playing their usual roles in the arguments. The liberal bloc Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan all seemed certain to uphold the broader interpretation of the housing law. Conservative Samuel A. Alito Jr. left no doubt that he believes in the narrower interpretation, while the moderate-conservative Anthony M. Kennedy followed Roberts’s questions with one to the same effect. Clarence Thomas, as usual, asked no questions, but he has voted consistently to limit civil rights laws to intentional discrimination.
Along with the purely legal arguments pressed by the liberal justices, the pragmatist Breyer challenged the state’s lawyers on practical grounds. “Why," he asked, "should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people [and] has not produced disaster?”
Twice already, the Roberts-led majority has turned Breyer’s concerns aside in civil rights cases first in the 2007 ruling that limited racial-balance policies by public schools and then with the 2013 decision gutting the Voting Rights Act. Roberts warned against unsettling precedents in his confirmation hearing, but he appears to be only half a vote away from fundamentally changing federal civil rights law for the third time in less than a decade.