Toward the end of the 1960’s, the law and social science were speaking the same language about racial discrimination on several issues. During this era, racism tended to be defined as behaviors that were discriminatory against a race, e.g., blacks, intentionally or otherwise, and the 1964 Civil Rights Act was considered violated if a policy or practice disproportionately affected individuals, or had a “disparate impact”, on the basis of race, color, religion, sex, or national origin. Through the years, opponents of the 1964 Civil Rights Act attacked the principle of disparate impact and substantially weakened its use. For several years it appeared that the first step of a final blow came on April 25, 2001 with the U.S. Supreme Court decision on Alexander v. Sandoval. The majority decision, written by Justice Scalia, held that private parties cannot sue under disparate impact regulations, and instead could bring suit only under intentional discrimination, although social science contends intention is irrelevant in discrimination. A recent Court decision, however, slowed this march toward eliminating the principle of disparate impact.
While celebrating the recent decisions of the U.S. Supreme Court supporting same-sex marriage and the Affordable Care Act (Obamacare), another decision might have been overlooked – the decision in a housing discrimination case, The Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project, Inc., in which the Court upheld the principle of “disparate impact” and ruled that practices in areas like employment and housing are discriminatory and illegal if they have a disproportionate “adverse impact” on persons characterized by race, color, religion, national origin, or gender. On June 25, in a 5-4 decision, the Court surprised many by ruling that The Texas Department of Housing and Community Affairs had violated the Fair Housing Act by placing subsidized housing in mostly poor, minority neighborhoods and not in wealthier, whiter neighborhoods, discouraging minorities from moving into white areas and perpetuating segregation.
The Court officially declared that disparate impact is recognizable as a category of racial discrimination under the Fair Housing Act. The limitation of the ruling is that only governmental agencies can bring such suits, not individuals, so attention must be given to these agencies , which have not traditionally been leaders in pursuing equality.
Attention to this issue is critical as African Americans continue to endure discrimination in housing. Aside from being denied the purchase or rental of housing, a blatant function of racism, African Americans, the elderly, and single women with children have also been disproportionately subjected to the illegal, nationwide practice of predatory lending, which contributed to the mortgage foreclosure disaster and financial crisis of 2006-2007. The evidence of discriminatory practices affecting housing for minorities is overwhelming, as housing audits continuously and indisputably show these practices in action.
The Department of Housing and Urban Development (HUD) has twice launched national paired testing studies to measure the national incidence of discrimination in housing rentals and sales transactions. In these studies, separate teams of white and black auditors posing as home-seekers are sent to inquire about the availability of advertised housing units. Auditors, assigned similar demographic and economic characteristics, differing only by race, present themselves in a neutral manner, inquire about housing, and record the poster’s response. These data are later analyzed to see if the responses differ by race.
The first of these paired studies, completed in 1977, involved 3,200 paired tests for discrimination against African Americans in 40 major metropolitan areas. Ten years later, they conducted a second study, using 3,800 paired tests for discrimination against African and Hispanics. Black-White tests occurred in 20 cities and Hispanic-Anglo tests occurred in 13 cities. In 2000, they conducted a third study, consisting of 4,600 paired tests in 23 metropolitan areas. In all three studies, HUD found significant discrimination against African Americans in the rental and sale of housing.
In 2008, the 40th anniversary year of the Fair Housing Act of 1968, the Leadership Conference on Civil Rights/Education Fund, the National Fair Housing Alliance, the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund, and the Lawyers’ Committee for Civil Rights Under Law came together to form the National Commission on Fair Housing and Equal Opportunity, which investigated the state of fair housing. Co-chaired by former HUD secretaries Democrat Henry Cisneros and Republican Jack Kemp, the Commission held hearings for six months in five major cities. They concluded that despite strong legislation, ongoing discrimination practices in the nation’s housing and lending markets continue almost unabated.
The recent U. S. Supreme Court decision should be seen as an opportunity to address ongoing housing discrimination. As per the recent decision, only agencies can bring suits against offenders, so what’s next? One course of action is to insure that relevant agencies have the data gathering processes in place and that they be aggressive in acting on this data.