SCOTUS: You Can Be Racist Without Actually Being Racist

It is clear that last week was not a good one for conservatives who believe in judicial restraint. The Supreme Court invented a new right to same sex marriage and managed to interpret a law to mean that opposite of what is actually said. Truly a groundbreaking moment in the history of legal thinking.

The case of Texas Department of Housing and Community Affairs v. Inclusive Communities Project played its own unique role in perpetuating flawed legal thinking – and in doing so has affirmed vast federal powers in regulating private property.

This case was centered on a legal doctrine called disparate impact, which states that a practice–in this case, for housing–is discriminatory if it has a disproportionately adverse impact on people of a certain race. In contrast with disparate treatment, which requires conscious discrimination on the basis of race, disparate impact does not take intent into account. This doctrine itself is deeply flawed – but first, the facts of the case in question.

The lawsuit against the Texas was prompted by the way it was distributing low-income housing tax credits from the federal government in Dallas. The federal government typically encourages these credits be used to build low-income housing in low-income areas, with the states allowed to determine other criteria. However, Texas was accused of creating a disparate impact against minorities with the way it distributed these credits.

New housing projects being proposed in areas that were 0-10 percent white were approved 50 percent of the time, while those proposed 90-100 percent white areas were approved 37 percent of the time. A Texas-based nonprofit, the Inclusive Communities Project, considered this discriminatory.

Since low-income housing was approved in nonwhite, inner-city neighborhoods at a higher rate than in white suburbs, they argued that low-income minorities would be denied the ability to live in neighborhoods with better schools and more economic opportunity.

Because of this, Texas was accused of violating the 1968 Fair Housing Act, a federal law that made it illegal:

To refuse to sell or rent… or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

Justice Kennedy, who wrote the majority opinion for the Court, relied heavily on the precedent of Griggs v. Duke Power Co. (1971), a case which decided “anti discrimination laws should be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.”  He further determined that the FHA’s phrase “otherwise make unavailable” implied a “shift in emphasis from an actor’s intent to the consequences of his actions.” So disparate impact analysis was included in the law all along.

Justice Alito pointed out in his dissent that the law said no such thing. The emphasis on “make unavailable… because of race…” signaled an active decision to deny housing to somebody on account of race. The Supreme Court had never applied disparate impact in a case until three years after FHA passed, so it made no sense to assume that lawmakers intended to include it.

So here we have yet another example of the Court interpreting a law to mean something that it did not say (hello, SCOTUSCare). But the worst part is, disparate impact itself is a flawed legal theory with frightening implications for the country. In any situation where minorities are disproportionately worse off, discrimination is assumed to be the key factor. It is a method for construing racism without racists, and casting a wide net of legal liability over differences in policy outcomes between races.

Proponents argue that unequal outcomes are evidence of structural racial discrimination. This can be true – if there is evidence of a system that is built to be discriminatory. In a country where employment programs, affirmative action programs, and yes, housing programs and the FHA exist with an eye towards explicitly combating racial discrimination, that case is difficult to make.

As Thomas Sowell has pointed out, differences in outcomes occur all the time between different groups without discrimination being a factor. Hispanic Americans are disproportionately represented in professional baseball, Asian Americans in elite universities – both of these come at the expense of other groups but nobody considers it racial discrimination. Seeking to perfectly equalize economic and social outcomes where no foul play exists is an exercise in futility.

In this particular case, the easiest explanation for the choice of low-income housing locations is that federal law promotes their construction in low-income areas, and the vast majority of low-income areas in Dallas tend to be non-white. Of course this is by no means an acceptable economic outcome, and the federal government historically has played a role in racist policies that perpetuated neighborhood segregation. But forced desegregation likewise has a bitter legacy in this country, and the FHA was not intended as a means of achieving that – it was simply meant to prevent intentional racial discrimination.

Enforcing disparate impact theory calls for punishing individuals, firms, and government agencies for nationwide trends that they have no control over. Worse yet, it labels them with the serious accusation of “discriminator” despite their intentions. The only guaranteed solution for them to combat this charge is by instituting a racial quota system, and intentionally seeking out project locations and renters on the basis of race. Thus, the only remaining defense against accusations of unconscious racial discrimination is to… consciously discriminate by race. Rather than moving towards a colorblind society (you know, like this country’s laws require), disparate impact brings us to a hyper race-conscious legal landscape, where arbitrary punishment is subject to statistical cherry-picking by lawyers and selective enforcement by judges.

In his dissent, Justice Alito recalled a case from St. Paul, Minnesota in which landlords were forced to respond to rodent infestations and other violations of the city’s housing code in low-income units. Such improvements raised the values of the properties and disproportionately impacted minority residents that were more likely to be low income. This is the country we live in under disparate impact theory – where even an attempt to remove rodents from homes can elicit charges of racial discrimination.