A Victory for Economic Justice and Civil Rights

The Supreme Court upheld the use of disparate impact claims in Fair Housing Act litigation.

Justice Anthony Kennedy wrote for the majority of five:

“In striving to achieve our ‘historic commitment to creating an integrated society,’ we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘our Nation is moving toward two societies, one black, one white—separate but equal.’”

This is going to be a less high profile case than the also wonderful King decision but it is equally important. The Atlantic correctly notes that proving actual discrimination is often extremely hard. Politicians and others have learned to avoid smoking guns that used to be found in cases like Loving v. Virginia. This is true in all sorts of contexts.

A Disparate Impact theory allows people to show that a policy had a discriminatory effect even if it lacked a discriminatory intent. A lot of affordable housing is built in low-income neighborhoods which are often racially segregated and lack the good schools and other amenities of wealthier parts of cities and suburbs. This is not merely a North v. South issue. Westchester County in New York has been ignoring and fighting against building affordable housing for years.

The next issue is whether communities are going to follow this decision or ignore it. The simple truth is that a lot of well-to-do people even well-meaning liberals probably have an unconscious bias in favor of lots of forms of housing segregation. This goes beyond racial and class segregation. Americans have consciously and unconsciously decided that suburbs are for middle-class and above families with children and cities are for childless adults, college and grad students, the poor, immigrants, and minorities. This is slowly changing. Most of San Francisco’s tech jobs are located in the suburbs but the suburbs refuse to build housing that is appropriate for young childless twenty-somethings.

On some level, I can understand why parents especially parents of young children do not want to live next to 24-year old college graduates. I am 34 and childless and get annoyed with younger neighbors who like playing loud music at 2 in the morning or who stagger home drunk loudly at that time. But enjoyment of peace and quiet is no reason to make certain neighborhoods for upper-middle class people only by intent or inadvertently.