The Corner

Law & the Courts

‘Color of Skin, Not Content of Character’

On Monday, we’ll be honoring Martin Luther King Jr., whose most famous quote is, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This year marks the 50th anniversary of Dr. King’s death at the hands of an assassin; it is also the 50th anniversary of the passage of the federal Fair Housing Act.

So there’s some irony in a news story from this week: A Fair Housing Act lawsuit has been settled, with each plaintiff getting $8000, where the theory was that the landlord and local government discriminated against people not because they had a particular skin color, but because they had a criminal record. That is, it was illegal to judge people by the content of their character, and it didn’t matter if the color of their skin had nothing to do with it.

That’s because the Fair Housing Act – thanks to a 5-4 Supreme Court ruling a couple of years ago, where Justice Kennedy joined the Court’s four liberals – allows “disparate impact” causes of action. Under this theory, a housing policy that is racially nondiscriminatory in its terms, in its enforcement, and in its intent, can still be held illegal if its leads to statistically different results for different racial and ethnic groups. In the case here, disqualifying people with a criminal record apparently has a disproportionate result in this particular locale on African Americans.

Thanks a lot, Justice Kennedy.

By the way, landlords now face a Catch-22: If they try to keep convicted criminals out of their properties, they will risk a Fair Housing Act lawsuit. If they don’t, and a tenant with a criminal background injures another tenant, then they risk a lawsuit by the latter for the foreseeable harm caused by the former.

All is not completely lost, however. Congress, of course, could amend the statute. Maybe some day a better Supreme Court will undo its damage. And in the meantime, the Trump administration can at least revise the Obama administration’s regulations under the statute so that they are no worse than they have to be under the Supreme Court’s decision. Indeed, to his credit Justice Kennedy did put some constraints on the scope of disparate-impact lawsuits, and those constraints should be reflected in the executive branch’s regulations.

Here’s hoping that each branch does its part to restore a statute that forbids judging people by the color of their skin, but allows them to be treated differently according to the content to their character.

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