During the same week in which we celebrate Dr. Martin Luther King, Jr., the Supreme Court will hear a significant case determining whether one of Dr. King’s legacies, the Fair Housing Act of 1968, will continue to be fully and effectively enforced. For civil rights and housing advocates, the stakes could not be higher.


Passed in the wake of Dr. King’s assassination, the Fair Housing Act was the last of the momentous civil rights laws of the supremecourtbuilding1960s.  Dr. King had warned against the harms of housing segregation, caused in large part by government-sponsored policies like redlining and racially-exclusive zoning.  Senator Edward Brooke, R-Mass., who died recently and was the first popularly elected African-American Senator, was an original co-sponsor of the Act, along with Senator Walter Mondale, D-Minn.  Senator Brooke stated that “residential segregation [had] become central” to the country’s “major domestic problems.”

The original Fair Housing Act banned discrimination on the basis of race, color, national origin and religion.  Amendments signed into law by Presidents Ford and Reagan added protections against discrimination based on gender, disability and familial status.SupremeCourtJustices

The case before the Court is Texas Department of Housing and Community Affairs v. Inclusive Communities Project.  A Dallas civil rights organization challenged the State of Texas policy of placing low-income housing only in African-American neighborhoods, thereby reinforcing racial segregation, instead of fairly distributing such housing across all communities.

The lawsuit raises a “disparate impact” claim under the Fair Housing Act.  Essentially, this standard prohibits policies that appear neutral but unfairly exclude classes of persons in practice.   It allows us to recognize and prevent harmful and inequitable policies so that everyone is treated fairly.  The standard has been used to root out discriminatory policies not only in housing, but in employment, education, voting and environmental justice.  As our Supreme Court amicus brief notes, “housing segregation imposes a wide array of socioeconomic harms that can only be fully eliminated through a framework that includes a disparate impact standard.”

In this case, U.S. District Judge Sidney Fitzwater found a violation of the Fair Housing Act based on the Texas policy’s disparate impact on African Americans. The U.S. Court of Appeals for the Fifth Circuit agreed that a violation could be shown by proving disparate impact but remanded the case to apply standards adopted by the U.S. Department of Housing and Urban Development, noting that “[t]hese standards are in accordance with disparate impact principles and precedent.”

Unfortunately, Texas chose not to defend its policy on the merits, but instead asked the Supreme Court to rule that the disparate impact standard cannot be used in claims under the Fair Housing Act.  Texas’s petition asked the Court to decide two questions: 1) are disparate impact claims cognizable (meaning, available for use) under the Fair Housing Act; and 2) if disparate impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply.

The Court agreed to consider only the first question.  This was an aggressive move because, since the early 1970s, the Fair Housing Act has been interpreted to allow disparate impact claims.  Courts have recognized that some forms of discrimination are covert and difficult to detect, but are just as harmful as intentional discrimination.  The Fifth Circuit was among the first to do so.  In 1973, it ruled that “it is not necessary to show that [defendant] intended to deprive [plaintiffs] of rights granted by the Act.  A violation occurred because [the] words had that effect.” United States v. Pelzer Realty Co.  In 1978, it held that “a significant discriminatory effect flowing from rental decisions is sufficient to demonstrate a violation of the Fair Housing Act.” United States v. Mitchell. 

This method of proving discrimination is firmly embedded into our civil rights jurisprudence.  It has enabled communities of color to challenge entrenched residential segregation patterns that would be impossible to eliminate on a house-by-house basis.  Families with children have sued over apartment occupancy standards which limit the number of persons per bedroom.  Victims of domestic violence have challenged public housing policies which evict them for violent incidents; no woman should have to choose between personal safety and a home for her family.

Unlike the split in authority among circuit courts leading to the Supreme Court’s review of same-sex marriage bans, there is no disagreement among courts about using disparate impact in fair housing law.  Since the Nixon Administration first invoked this standard in fair housing cases, eleven circuit courts to consider the question have unanimously affirmed its use under the Fair Housing Act.

The recent tragedies in Ferguson and Staten Island have reignited a long overdue national discussion about racial inequality.   Despite our best efforts, we are a long way from achieving the racial justice envisioned by Dr. King.  Now is precisely the wrong time for the Supreme Court to eliminate longstanding protections for challenging systemic racial and other forms of discrimination in housing.  The very fabric of our neighborhoods and communities across the country hangs in the balance.