The Corner

Politics & Policy

‘Disparate Impact’ Again — This Time in Housing

Secretary of the Department of Housing and Urban Development Ben Carson testifies on Capitol Hill in Washington, D.C., March 22, 2018. (Kevin Lamarque/REUTERS)

Once again the Left is insisting that, if you don’t favor using the “disparate impact” approach in civil-rights enforcement to the nth degree, then you are a racist, and the MSM can be counted on to accept this narrative uncritically. We recently went through all of this with respect to school discipline, and now a front-page story in the Washington Post does the same thing with respect to housing.

A housing policy that actually treats people differently with regard to skin color — “disparate treatment” — is wrong and illegal and should be challenged, and there is no evidence that Ben Carson and the Trump administration’s Department of Housing and Urban Development disagree. The problem is when a policy is nondiscriminatory on its face, in its intent, and in its application — but also leads to politically incorrect racial numbers, or “disparate impact.” So, for example, a landlord prefers not to rent to people with a history of violent crime or not paying bills, and follows that policy without regard to race, but as a result refuses a higher percentage of, say, African American applicants than, say, Asian American applicants.

To call this policy discriminatory, let alone racist, is quite a stretch not only as a matter of language but also as a matter of law and policy. And note that, to the extent that such policies are challenged, those hurt most will include other tenants in high-crime areas, who are themselves likely to include a disproportionate number of African Americans.

So here’s hoping that the Trump administration will stick to its principles, and be aggressive in challenging actual racial discrimination in housing, but very cautious in its use of the disparate-impact approach. (Some recognition of it, alas, may be inevitable given a poor 2015 Supreme Court decision in this area; that’s not the case, thankfully, with respect to school discipline.)

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