Hans von Spakovsky and Elizabeth Slattery had a fine article earlier this week about Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., in which the Supreme Court will decide whether to recognize disparate-impact causes of action under the Fair Housing Act. I appreciate in particular their linking to a piece I had on SCOTUSBlog, “The Fair Housing Act doesn’t recognize disparate-impact causes of action.”
Let me just add three brief points. First, it’s frequently asserted that we must allow “disparate impact” causes of action because actual discrimination (“disparate treatment”) is difficult to prove. But this is simply not true: The overwhelming majority of housing cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the Department’s press releases every day (as I do) can attest.
Second, many on the other side are arguing that you need the disparate-impact approach in order to go after segregated housing patterns. But of course that is not true if the segregation stems from disparate treatment. And if it is not the result of disparate treatment, then using the disparate-impact approach raises all the usual problems inherent in the disparate-impact approach. For example, how much racial balancing is to be required? What if the reasons for the racial imbalance reflect voluntary decisions or economic realities? What sort of remedies will be required (like deliberate assignments on the basis of race), and what if those remedies end up hurting people (including minorities) on the basis of race? And so on. Besides, if racial imbalances in housing patterns are a result of voluntary choices by individuals, then it’s unclear why this is a huge evil that the government needs to fix.
Finally, I’d note that the National Association of Mutual Insurance Companies submitted excellent testimony on this issue at November 2013 Congressional hearings, which can be read here (starting at page 110 in the hard-copy pagination).
Here’s hoping the Court does the right thing and puts an end to this nonsense.