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Housing discrimination case could have broad implications

A case between a Texas state housing agency and an advocacy organization asks the Supreme Court to decide whether unintentional discrimination over federal tax credits violates the Fair Housing Act. The results could have repercussions beyond both the state of Texas and the housing industry. Marcia Coyle of The National Law Journal helps outline the case with Judy Woodruff.

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  • JUDY WOODRUFF:

    To the Supreme Court now, where arguments were heard today on a housing discrimination case that could have sweeping effects across the country.

    To walk us through what happened is NewsHour contributor Marcia Coyle of The National Law Journal.

    Welcome back. We saw you just last night.

  • MARCIA COYLE, The National Law Journal:

    Yes, you did. Happy to be back, Judy.

  • JUDY WOODRUFF:

    A lot going on at the court.

    So, Marcia, this is a case being closely watched in many places, including the civil rights community. Tell us what it's about.

  • MARCIA COYLE:

    The Texas Housing Agency administers a system of federal tax credits to developers who will build housing for low-income families.

    The Inclusive Communities Project in Texas is an organization that advocates integration of predominantly white suburbs of Dallas, Texas. The project sued the Texas Housing Agency, claiming it had violated the federal Fair Housing Act because most of the development that was receiving federal tax credits was being done in poor minority communities.

    The lower federal courts said that the project could bring the kind of claim that it has brought under the federal law, something we call disparate impact claim. That claim says Texas Housing Agency seems to have a policy for these tax credits, neutral on its face, but it has a discriminatory effect when it's actually applied.

    The question before the Supreme Court, which was brought by the state of Texas, is whether you can bring this type of claim, which has been available for 40-some years, under the Fair Housing Act.

  • JUDY WOODRUFF:

    So, at the core — some of what's at the core of this is whether it discriminates — even though there wasn't intention, the effect is to discriminate.

  • MARCIA COYLE:

    Yes.

  • JUDY WOODRUFF:

    And these are the kinds of cases that haven't come to the court in recent years.

  • MARCIA COYLE:

    This particular question has not reached the court, although 10 federal courts of appeals have addressed it and have found that this type of claim is available under the Housing Act.

  • JUDY WOODRUFF:

    So, tell us about the arguments made and how the justices reacted.

  • MARCIA COYLE:

    You know, Judy, any time this particular court deals with a race-related question, it seems to almost always divide them ideologically.

    And that played out a bit during the arguments today. You had Justices Ginsburg, Breyer, Sotomayor and Kagan having — steering their toughest questions to the Texas Housing Agency's lawyer.

    Justice Breyer, for example, said, why should the Supreme Court now, after this claim has been available for 40 years, and federal appellate courts have said it's OK, why should we say that it's not available under this particular law?

    And the Texas lawyer made two arguments. He said the plain language of the federal law doesn't say that it's available. It only addresses intentional discrimination, not impact discrimination. And also, he said, if governments and zoning officers, the banks, lenders are faced with disparate impact liability, they're going to be forced to make race-conscious decisions.

    On the other side, we heard arguments. The solicitor general of the United States and the lawyer for the project that sued defended the use of these claims. Then Chief Justice Roberts and Justice Alito and Justice Scalia, they had some problems with the availability of the claim.

    Chief Justice Roberts said, how do you tell what is a good impact and a bad impact? Maybe there's a community that wants development because the neighborhood is blighted and this is a community that's predominantly minority, or there's a community that wants to be integrated? So how do you tell?

    And the solicitor general of the United States said, this is the disparate impact process. It's played out in court. The agency has to come forward to justify the policy that's being questioned, and if it does have a discriminatory effect, it has to come up with another race-neutral alternative.

  • JUDY WOODRUFF:

    Sounds like a lively discussion.

  • MARCIA COYLE:

    It was very lively.

    And civil rights groups have been very concerned because several justices have criticized the availability of disparate impact claims.

  • JUDY WOODRUFF:

    And, Marcia, we said earlier the — whatever is decided could have repercussions beyond housing.

  • MARCIA COYLE:

    That's right, because this type of claim, it really addresses what we call second-generation discrimination.

    Just about everybody knows that intentional discrimination on the basis of race or another protected characteristic is illegal, but discrimination today is much more subtle, and civil rights groups say this is an extremely effective tool for rooting out that type of discrimination.

  • JUDY WOODRUFF:

    Separately and very quickly, a little excitement at the court this morning before all these arguments got under way.

  • MARCIA COYLE:

    Yes, very unusual.

    Today was the fifth anniversary of court's still controversial Citizens United campaign finance decision. Right after the justices took their seats on the bench, before they issued decisions today, someone popped up in the back of the public audience and started shouting something to the effect, "I arise on — because of democracy."

    The guards immediately moved to take that person out of the courtroom. And then, one after another, almost seven total, I believe, popped up at different points to make comments, like "One person, one vote," "Money is not speech," "We are the 99 percent."

    They were later charged under a law that prohibits haranguing, loud orations in the Supreme Court building and also charged with conspiracy.

  • JUDY WOODRUFF:

    I should say the president of the United States had something in common. The White House issued a statement from the president today talking about Citizens United doing real harm in the five years…

  • MARCIA COYLE:

    Yes. In fact, if I recall correctly, Judy, he also mentioned it during a State of the Union address not too long ago.

  • JUDY WOODRUFF:

    You're right.

    Marcia Coyle, we thank you.

  • MARCIA COYLE:

    Oh, my pleasure, Judy.

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