Bench Memos

St. Paul Abandons Suit for Fear of Winning

It takes some doing to explain how abandoning your case because you think you might win it is consistent with a lawyer’s duty to be a zealous advocate. But the City of St. Paul did just that in a discrimination suit whose absurd contours only highlight the danger of a liberal philosophy so obsessed with fighting theoretical discrimination that it actually hurts disadvantaged minorities in the name of equality.

The case is Magner v. Gallagher, in which St. Paul had attempted to enforce its housing code through taking such controversial actions as addressing rodent infestation, fixing heating systems, and improving sanitation. Outraged landlords, not content to comply with the housing code, sued, claiming that enforcing the code raised prices for their minority tenants.

The Eighth Circuit found that there was no evidence of intentional discrimination motivated by race. However, under current law, plaintiffs need only prove “disparate impact” on minorities, which simply requires a statistical showing that the city’s policies disproportionately hurt minorities, without any intentional discrimination on the part of the government.

On Friday (the biggest news day of the week in the Obama administration), the City of St. Paul, requested that the Supreme Court dismiss its case in Magner within weeks of oral argument because — get this — they were afraid they would win. That’s right, the city was afraid its arguments against using disparate-impact analysis were so strong that the Supreme Court might eliminate that theory of discrimination altogether.

Now why would the City abandon a winning argument? Because the Department of Justice told them to. As did former vice president Walter Mondale, the ACLU, and the NAACP. The city’s willingness to be steamrolled on this casts doubt on its ability to represent its citizens’ best interests and the lengths that the DOJ will go to in order to protect the constitutionally dubious legal bludgeon known as the “disparate impact” standard. 

The liberal interest groups pressuring St. Paul weren’t doing so out of the goodness of their hearts. Both DOJ and outside groups profit from the “disparate impact” standard. It allows them to continue litigating the Fair Housing Act when most violations no longer involve clear cut cases of intentional discrimination. Everyone should be celebrating the success that the Manhattan Institute has also recently identified in a study showing that “American cities are now more integrated than they’ve been since 1910.” 

But for many liberal interest groups, Fair Housing Act litigation is their bread and butter, so finding a new source of violations is essential to their own survival, and disparate-impact analysis provides just that.

Disparate impact is also a source of funding for these same interest groups. For example, up until now, the DOJ’s threat of “disparate impact” litigation has forced banks to settle lawsuits rather than risk the racist label. Since there are only statistics and no actual victims in these cases to receive damages, money from the settlements flows back into these special-interest-group organizations, including the many revamped successors to ACORN. Representative Lamar Smith, Senator Grassley, and multiple federal judges have highlighted this problem.

 Instead of punishing clear cut instances of discrimination, the “disparate impact” cases, protected by the DOJ’s political involvement in cases such as this, use statistics to punish organizations for using racially neutral standards. Making the law too sympathetic for actionable discrimination, without clear-cut evidence of intentional discrimination, has unintended consequences. Refusing to enforce the housing code for fear of statistical liability hurts the poor, who must live in the uninhabitable locations. Elsewhere, employers could replicate Ricci v. DeStefano, where employers were so worried about “disparate impact” liability that they discriminated against white and Hispanic firefighters who passed a qualifying test in higher rates than blacks.

If there are racial problems with housing, address them through legislation. The DOJ and far-left organizations should not use litigation threats to force legal settlements and the courts to jam a legislative agenda down the throats of the public, especially while using a legal tool that even its supporters acknowledge has dubious constitutional foundations. The constitution shouldn’t be reduced to a mere hurdle to jump in pursuing a partisan political agenda.  


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