It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin.
Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She makes this decision for obvious reasons, namely that such criminals are unreliable tenants and that their presence makes it harder to rent other units and more likely that current tenants will decide to leave. She does not adopt this policy because she thinks it will disproportionately exclude members of this or that racial or ethnic group — indeed, she is completely unaware of what demographic impact it will have — and she applies it evenhandedly, without regard to skin color or national origin. What’s more, she can prove all this in court.
Can she nonetheless be liable for racial discrimination if her policy turns out to exclude members of some racial groups more frequently than members of other racial groups?
The Obama administration says yes — and the Supreme Court will determine in the Texas case if that’s right. In the meantime, a federal district court has said no, and struck down the administration’s regulations to the contrary.
In the administration’s view, and according to those regulations, which were issued by the Department of Housing and Urban Development, if a policy has this sort of “disparate impact,” as it is called, then that’s enough to make the landlord liable. So she must then prove — to the satisfaction of the HUD bureaucrats, a federal judge, or a jury — that there is some high degree of “necessity” providing “legally sufficient justification” for her policy.
And even if she shows this necessity, she can still lose if the government (or a civil-rights plaintiff) persuades the judge or jury that there was some other policy she could have followed that would have been practically as good and would not have resulted in those bad numbers.
The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation. In employment, for example, it complains if a fire or police department administers physical or written tests that have politically incorrect results, or if a company uses criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution.
The disparate-impact approach is also applied to require the use of a foreign language — on driver’s-license exams, for example — on the theory that using only English might have a disproportionate effect on the basis of national origin. And it has been used to pressure banks and other institutions with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.
The disparate-impact approach pushes potential defendants to do one or both of two things: get rid of perfectly legitimate selection criteria, or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right.
In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin.
While the Obama administration’s enforcement policies are bizarre, the other two branches of government are also at fault and can likewise help address the damage that’s being done.
The courts have often blessed these lawsuits even when they are inconsistent with the underlying civil-rights statutes. The Supreme Court has the opportunity in the Texas case to end such lawsuits under the Fair Housing Act.
Congress can play a role, too. It should change those statutes that allow for disparate-impact lawsuits, like Title VII of the 1964 Civil Rights Act, which deals with employment discrimination. The Voting Rights Act also has disparate-impact provisions in it. If Congress won’t take them out, it should at least not put any new ones in, no matter what the civil-rights groups demand.
If Congress won’t change these statutes, then the Supreme Court should strike them down or at least limit them. After all, they explicitly require decision makers to weigh skin color in their actions — a requirement that the Constitution generally forbids, and that is at odds with Dr. King’s dream.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity, which frequently challenges the disparate-impact approach in amicus briefs.