By Rhonda Mays
After several summers of rioting in the mid 1960s, the National Advisory Commission on Civil Disorders in 1968 issued a report highlighted by the statement “Our nation is moving toward two societies, one black, one white – separate and unequal.”
The Reverend Martin Luther King recognized that one force driving that separation was housing discrimination. With minority communities facing significant barriers to access housing and credit markets, they could not adequately build wealth, have access to a quality education, be hired into well-paying jobs, and obtain decent health care.
The Fair Housing Act of 1968 was enacted to address the vast racial disparities and unequal treatment minorities suffered in the housing market. Blatant discriminatory treatment such as red-lining and restrictive covenants were outlawed.
However many observers believe more subtle practices, which are “race neutral” on their face but have the effect of racial unfairness, took the place of overt discrimination. Instances of this phenomenon are generally known by the short-hand term “disparate impact.”
Though the negative effect may not be intentional, remedies under Title VII of the Civil Rights Act must nevertheless be put into place to eradicate the adversity. Since the Nixon administration, the finding of “adverse effect” has been used in Fair Housing policies to rectify negative consequences that disproportionately affect minorities, women, the elderly, and handicapped individuals.
Well-known recent examples involved the lenders Countrywide Corporation and Wells Fargo Bank. Both banking institutions paid multi-million dollar settlements for unfair lending practices that resulted in vastly disproportionate numbers of higher-cost sub-prime mortgages within low-income and minority communities. Minority borrowers paid substantially higher loan fees than similarly situated white borrowers.
However, the US Supreme Court will decide this spring or summer whether or not the doctrine of disparate impact in housing discrimination cases will be allowed.
The case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., is the third attempt to bring a disparate impact case before the high court. The other two cases, one each in Minnesota and New Jersey, had been settled before being heard by the justices.
Antonin Scalia, one of the Supreme Court’s most conservative justices, is predicted to be the deciding vote.
Inclusive Communities Project, Inc. seeks to promote integration within the Dallas Texas suburbs by using tax credits that are distributed to housing developers by the Texas Department of Housing and Community Affairs.
Inclusive Communities complained that the State of Texas disproportionately granted tax credits to developers who built homes in low-income areas, while steering credits away from the more affluent sections of the Dallas suburbs.
That policy, claims Inclusive Communities, causes an adverse, disparate effect upon primarily low-income minority families who wish to live in areas with better access to superior services.
At the heart of the arguments in the case is whether Congress expressly intended to outlaw actions that result in disparate impact for protected groups.
The question of disparate impact has been brought before federal appeals courts 11 times and its legality was upheld each of those times.
Nevertheless, many civil rights organizations are leery of a high court decision that would strike this important tool in the fight to promote equal access to the nation’s housing.
Similar to the case that declared Section 4 of the Voting Rights Act unconstitutional in its present form, the decision regarding disparate impact is anticipated to be close. Antonin Scalia, one of the Supreme Court’s most conservative justices, is predicted to be the deciding vote.
If the Supreme Court decides against the use of disparate impact claims in regard to fair housing, it could be the second serious blow to one of the pillars of civil rights that has been in force during the decades since the death of Martin Luther King. Most importantly, the clock of fair and equal justice in our society could be set back to the time when two American societies, separate and unequal, will once again be a fact we must all endure.
Rhonda Mays, of Harrisburg, is a PennLive community columnist. Her work appears biweekly.
Article originally appeared at: http://www.pennlive.com/opinion/2015/03/rhonda_mays_us_supreme_court_d.html