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Quiet Bomb: (Un)fair housing gets a hearing.
National Review Online ^ | July 18, 2002 | Roger Clegg

Posted on 07/18/2002 9:14:35 AM PDT by xsysmgr

During the last week of its just completed term, the Supreme Court granted review in a case called Cuyahoga Falls v. Buckeye Community Hope Foundation. The Court's decision got very little publicity, but one of the issues in it is extremely important. The question is whether the federal Fair Housing Act — which bans discrimination on the basis of, among other things, race — can be violated by someone who does not engage in racial discrimination.

Now, the answer to that question ought to be an obvious no, but unfortunately most of the lower federal courts have allowed "disparate impact" claims to be brought under the statute. These claims do not allege, and need not prove, that individuals were treated differently because of their race. Instead, it is enough to show that a neutral practice has a disproportionate effect — that is, a disparate impact — on some racial group.

For instance, if a landlord refuses to rent to people who are unemployed, and it turns out that this excludes a higher percentage of whites than Asians, then a white would-be renter could sue. It would not matter that the reason for the landlord's policy was race neutral and had nothing to do with hostility to whites. He would be liable, unless he could show some "necessity" for the policy. This, in turn, would hinge on whether he could convince a judge or jury that the economic reasons for preferring to rent to the gainfully employed were in some way essential. And this, unfortunately, is a roll of the dice.

There are lots of other examples of race-neutral policies that can be challenged because of the disparate impact they have in the housing market. Suppose an insurance company refuses to write policies for homes that are more than 40 years old, or if their market value is less than $40,000 (such rules are in fact common). That might have a disparate impact. Or suppose a lender refuses to make home loans to felons or people with poor credit ratings. That also might have a disparate impact. The same is true if a city makes a particular zoning decision (the underlying controversy in the Cuyahoga Falls case) or has per-house or per-apartment occupancy limits (an increasing area of controversy in many communities).

No one has any quarrel with the proposition that there should be liability under the Fair Housing Act if a policy singles out particular racial groups for disparate treatment, or if an ostensibly race-neutral policy is in fact unequally enforced, or even if a neutral policy — say, a "grandfather clause" — is deliberately adopted because of the fact that it will tend to exclude members of this or that racial group. The issue, rather, is whether a policy that is racially neutral by its terms, in its application, and in its intent can nonetheless be treated as illegal discrimination because of racially disproportionate results.

It is a good sign that the Supreme Court has granted review in Cuyahoga Falls. A majority of the justices are clearly uncomfortable with the disparate impact approach in a variety of contexts, and rightly so. It is a powerful engine in favor of quotas and racial preferences and against rational and productive selection criteria — which is exactly why the civil-rights left is so enamored of it. Thus, in the past year, the Court has raised questions about the legality of federal regulations that use the disparate impact approach and granted review in another case (later dismissed) that challenged the approach under the Age Discrimination in Employment Act.

The last time the disparate-impact controversy made it to the Supreme Court in a housing case, in Town of Huntington v. NAACP (1988), the Court expressly "reserved" the issue — that is, it raised and recognized the question but then decided not to resolve it. In that case, the Reagan administration had filed a brief urging the Court to rule against the "disparate impact" approach. The first Bush administration continued this policy, but the Clinton administration reversed it. The second Bush administration should file an amicus brief in the Cuyahoga Falls case, endorsing the Reagan administration's approach. We shall see.

— Roger Clegg is general counsel of the Center for Equal Opportunity.


TOPICS: Culture/Society
KEYWORDS: disparateimpact; fairhousing

1 posted on 07/18/2002 9:14:35 AM PDT by xsysmgr
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To: xsysmgr
What if turns out that property owners subject to fair-housing laws tend to be of a certain race? Do they get to file claims?
2 posted on 07/18/2002 9:58:48 AM PDT by Jack Wilson
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To: xsysmgr
Simple solution. If you don't want fleas, don't sleep with the Dog.
3 posted on 07/18/2002 10:12:55 AM PDT by Area51
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