As we at Regional Housing Legal Services (RHLS) take the opportunity of Martin Luther King Jr. Day to reflect on the history of civil rights in our country, we consider the significance of the Fair Housing Act (FHA) and its importance in promoting racial equality. The FHA was signed into law by President Lyndon Johnson on April 11, 1968 – just one week after the assassination of Dr. King on April 4, 1968. For an inspiring depiction of the events that unfolded that historic week, check out the mini documentary “Seven Days” created by the Pittsburgh based film makers at Animal.
Dr. King’s successful efforts in Chicago to bring attention to the evils of housing discrimination made the issue a topic of national discussion and led some to call for federal legislation. However, the FHA was not an easy piece of legislation to pass. Its recognition and call for the eradication of the devastating practice of housing discrimination against individuals, families, and communities inspired many vocal opponents. The assassination of Dr. King, and the events that unfolded in the following days, galvanized the nation, took the air out of the voices of many major opponents, and prompted our congress to pass the last major piece of federal civil rights legislation. Now, we stand on another precipice of change for the FHA as The Supreme Court of the United States is scheduled to hear argument today, Wednesday January 21, 2015 in the important FHA case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (Texas v. ICP, Inc.).
The FHA codifies foundational principals and protections necessary for a truly equitable society. From dismantling redlining practices, to correcting exclusionary zoning laws, the FHA has had major successes defeating discriminatory policies. It has, thus far, not been successful in achieving all of its lofty goals.
The examples of record settlements under the FHA, coming out of the recent housing, lending, and foreclosure crisis, provide us very real evidence that suggests discrimination is alive and well. As Patrick Sharkey notes in the chapter entitled “A Forty Year Detour” in his book Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality, measures of segregation in Philadelphia have changed only slightly since 1970, and concentration of poverty has, if anything, gotten worse. Fortunately, there are many promising and exciting efforts in Philadelphia to work towards greater equality. Many of our clients are at the forefront of these efforts, making herculean strides in Philadelphia and throughout the Commonwealth with creative and impactful land use, economic development, and housing solutions. But there is still much work to be done.
Currently, advocates can use the FHA to bring an end to discrimination through litigation using two theories. First, advocates can allege disparate treatment, which involves intentionally singling out an individual based on a protected class and providing less favorable treatment. Alternatively, advocates may allege disparate impact, where -regardless of intent- a program, action, or policy that predictably causes members of a protected class to suffer disproportionately is a violation of the FHA.
The ability to bring disparate impact claims now hangs in the balance. In Texas v. ICP, Inc. the Supreme Court will decide whether these claims can continue to be brought under the FHA. In the over forty-five years since the passing of the FHA, the Supreme Court has not once addressed this issue.
As early as 1974, federal appellate courts recognized the validity of claims under the FHA where discriminatory effect, even absent proof of specific intent to discriminate, is a violation of the FHA. All eleven circuit courts to hear the issue have upheld the validity of disparate impact claims.
Disparate impact is an essential tool for fair housing advocates. This theory of liability is important not only because clever bigots may be effective in concealing their discriminatory intent, but because history has taught us, “that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme.”
As in the case of Huntington Branch, zoning laws are a most familiar example of a system that can cause severe negative consequences to protected classes without evidence, or even the presence, of discriminatory intent. Without disparate impact, the FHA will not have the power to correct the bigot’s cleverly hidden scheme, or the well-intended policies, programs, or actions that may produce or reinforce patterns of housing discrimination and segregation.
There are still significant strides to be made before we can eliminate the presence of discrimination in our housing markets. At RHLS we are inspired every day by our clients’ and partners’ efforts towards this lofty goal. The Supreme Court’s upcoming decision will undoubtedly have a significant impact on housing and communities. We hope you will keep your eye on the Court!
Jack Stucker is an Independence Foundation Fellow at Regional Housing Legal Services. Jack assists in the development of housing and supportive services as a means of tackling chronic street homelessness in the City of Philadelphia.