On Thursday, June 25, the U.S. Supreme Court handed down its decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project (ICP). Fair housing advocates experienced a whirlwind of emotions. First there was dread as SCOTUSblog announced that the Court’s decision in ICP would be the first announced that morning. Next came a brief interlude of disbelief as we momentarily struggled to process the news that the Court had upheld the Fair Housing Act’s (FHA) disparate impact standard. Once the reality of our victory sunk in, there was pure elation. After just a little while, however, it was time to get down to work. That day, we had to read Justice Kennedy’s majority opinion and the dissents, put out our press releases, and try to get heard in the media despite the much greater attention being paid to the Court’s decision in King v. Burwell.
Going forward, the civil rights community has three important tasks before it. First, there is an immediate need for advocacy oriented toward ensuring that the Court’s decision in this case does not result in a change the standard for the evaluation of disparate impact claims. In particular, this will mean continued participation as file amicus curiae in the insurance industries’ pending Administrative Procedure Act challenges to the validity of the U.S. Department of Housing & Urban Development’s (HUD) 2013 Discriminatory Effects regulation. HUD’s regulation strikes a fair and workable balance between the competing interests at play in disparate impact cases and has a deep foundation in the decades of circuit court decisions applying the disparate impact standard. In addition, vigorous communications efforts should be formulated to stem the proliferation of opinion pieces that characterize the Court’s holding as establishing a new and more rigorous standard for the adjudication of disparate impact claims. Despite claims to the contrary from large financial institutions and their advocates, Justice Kennedy’s decision is wholly consistent with existing circuit case law and the HUD rule.
Second, advocates have the opportunity to bring challenges to the types of policies and practices that play the most significant role in restricting access to opportunity and reinforcing structural racial inequality in the 21st century. One critical example is the use of overly broad criminal background policies by landlords and property managers in tenant screening for rental housing and a recent example of such a case is The Fortune Society, Inc. v. Sandcastle Towers Housing Development Fund, Inc., C.A. No. 14-6410 (E.D.N.Y.) brought by Relman, Dane & Colfax last fall and presently being litigated. Some housing providers deny occupancy to prospective tenants on the basis of arrest records in the absence of proof of wrongful conduct. Some, while confining their review to convictions rather than arrests, exclude prospective tenants on the basis of convictions for offenses that were either very minor or that occurred very long ago. The predictive value of criminal records of those varieties for determining whether someone is likely to be a good tenant is essentially nil.
Despite serving virtually no purpose, policies that prevent individuals with criminal records and their families from accessing housing have a devastating effect on communities of color. Racial disparities pile up at every stage in our broken criminal justice system. According to Uniform Crime Reporting data from the Federal Bureau of Investigation, African Americans, who comprise just 13.2% of the population of the United States, were the subject of 28.3% of arrests nationwide in 2013. Bureau of Justice Statistics data shows that in 2013 the percentage of state and federal prisoners who were African American was an even higher 33.9%. Housing policies that target those who have had contact with the criminal justice system are at the center of the tangle of interconnected sources of disadvantage that led the scholar Michelle Alexander to label mass incarceration “the New Jim Crow.”
Although the ability to pursue cutting edge legal claims is an important and exciting outcome of the ICP decision, Justice Kennedy’s opinion also reaffirmed the importance of taking on the barriers that have been the subject of the cases that comprise the “heartland” of FHA jurisprudence. By continuing to aggressively respond to phenomena like exclusionary zoning that keeps affordable housing out of high opportunity areas and siting policies that make it impossible for subsidized housing proposals in high opportunity areas to compete with development proposals in areas of racially concentrated areas of poverty, the Lawyers’ Committee and its coalition partners will respond to Justice Kennedy’s observation that “[m]uch progress remains to be made in our Nation’s continuing struggle against racial isolation.”
