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Will this Supreme Court ruling lead to greater fair housing enforcement?

The Supreme Court ruled today that housing discrimination doesn't have to be intentional for plaintiffs to be able to sue. Gwen Ifill gets background on the case from Marcia Coyle of The National Law Journal, then Hari Sreenivasan gets two views on the ruling from Ralph W. Kasarda of Pacific Legal Foundation and Olatunde Johnson of Columbia Law School.

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  • GWEN IFILL:

    The justices also ruled on another significant aspect of American life, housing segregation.

    As we mentioned earlier, a closely divided court found that housing discrimination, whether it occurs by zoning or home sales, doesn't have to be intentional for plaintiffs to sue.

    And, again, we turn to Marcia Coyle.

    Tell us about that case.

  • MARCIA COYLE, The National Law Journal:

    OK.

    The Fair Housing Act of 1968 makes it illegal to refuse to sell or rent a house, an apartment dwelling when there's been a legitimate offer because of someone's race, national origin, color. It's been clear for a long time that you can bring intentional discrimination claims under that act.

    But intentional discrimination is very difficult to prove. You have to get into somebody's motive or mind. What's not been so clear to some is whether you can bring another type of claim, what we call disparate impact claim.

  • GWEN IFILL:

    My first definition from you, I want. Explain what that is.

  • MARCIA COYLE:

    Right. Exactly.

    That's a claim that says a policy or a decision that appears neutral on its face has a discriminatory effect on someone.

  • GWEN IFILL:

    Give me an example.

  • MARCIA COYLE:

    Well, in this case, all right, the claim is that the Texas Department of Housing and Community Affairs is giving tax credits, federal tax credits to developers to develop low-income housing, but it's giving most of those tax credits to develop low-income housing in predominantly black low-income neighborhoods, and not trying to steer more tax credits to development in predominantly white suburban neighborhoods.

    Is the department intentionally discriminating? Well, again, that's very difficult to prove. But if you look at statistics, which is how you usually prove disparate impact claims, they're saying that what the Texas department is doing has a discriminatory effect.

  • GWEN IFILL:

    So, Justice Kennedy was a strong voice on this case as well.

  • MARCIA COYLE:

    He wrote the majority opinion.

    And he — it really turned on two things, I think, for Justice Kennedy. One, there was a long line of federal appellate court rulings finding that you could bring a disparate impact claim under this federal housing law.

    And, secondly, in 1988, some 20 years after Congress enacted the law, Congress amended the law. And at the time, it knew that nine federal appellate courts had said that you could bring this type of claim, and it did nothing to change that understanding. Not only did it do nothing, Justice Kennedy said, but it created exemptions from that type of claim.

  • GWEN IFILL:

    We're going to talk about this some more, but I also want to ask you, on a big day like today, when long-awaited cases come down, how dramatic is it inside that chamber?

  • MARCIA COYLE:

    You can feel a lot of public tension, excitement. It was crowded. The press — there was overflow in the press section.

  • GWEN IFILL:

    And you don't know until it comes down.

  • MARCIA COYLE:

    You don't know which decision it's going to be.

    When they started with the housing case, Justice Kennedy read — they read by seniority, so we knew that it was going to be something important, because he has a lot of seniority. And then it goes right to the chief justice, and then again we knew that it was going to be a big case.

  • GWEN IFILL:

    We will be watching for more drama Friday and perhaps on Monday as well.

  • MARCIA COYLE:

    Perhaps Monday as well.

  • GWEN IFILL:

    Thank you very much, Marcia Coyle, as always.

  • MARCIA COYLE:

    My pleasure.

  • GWEN IFILL:

    Glad you're there.

    For more reaction on this second big case, we go to Hari Sreenivasan in our New York studios.

  • HARI SREENIVASAN:

    Joining me now for a look at the housing issues this case addresses, and which remain unresolved, are Ralph Kasarda of the Pacific Legal Foundation. He filed an amicus brief in this case. And Olatunde Johnson, a law professor at Columbia University who has worked for the NAACP Legal Defense Fund.

    So, Olatunde, I want to start with you. It's been illegal to discriminate under the Fair Housing Act for the last 45 years. Why was today important?

  • OLATUNDE JOHNSON, Columbia Law School:

    Well, today was important because the Supreme Court made clear that practices that have the practical effect of excluding groups, even without a showing of intentional discrimination, that have the practical effect of excluding people based on an arbitrary characteristic, like race, or gender, or disability, that those are prohibited by the Fair Housing Act.

    And, as was mentioned before, this has been the law as it's been understood for more than four decades for — from the lower courts, but it's still an important pronouncement from the Supreme Court at a time where there's a lot of concern about housing discrimination and about residential segregation in this country.

  • HARI SREENIVASAN:

    But, Ralph Kasarda, you and your organization filed an amicus brief on what became the losing side today, in part because you said this leads to race-conscious decision-making. Did you find any clarity in the opinions that were written and handed down?

  • RALPH KASARDA, Pacific Legal Foundation:

    Actually, I did find some clarity.

    And just to reiterate, our objection to disparate impact is that it causes — it lead to race-conscious decision-making. And as Justice Scalia said in another decision, that it causes decision-makers to have their thumb on the racial scales and to make sure that their decisions have an outcome based on some predetermined racial quota, in other words.

    This decision was — in this decision, Justice Kennedy recognized that there is a constitutional concern here. As a matter of fact, no justice objected to that. All the justices would agree that there is a constitutional concern. And to address that concern, Justice Kennedy identified or reiterated some safeguards to ensure that disparate impact claims can be brought without fear of constitutional concerns.

  • HARI SREENIVASAN:

    Olatunde, I want to ask, what about this idea that motive or intent is taken out of the equation now, and we're just looking at effect?

  • OLATUNDE JOHNSON:

    Yes, I think it's important to emphasize, especially in light of the last comments, that this has been the law as it's been understood.

    It's true not just in the Fair Housing Act. It's true in other statutes dealing with employment, for example. I think there is a lot of misunderstanding of disparate impact. A lot of times, people think, if I just bring a claim, that it has an impact on a group, and that's enough for you to win.

    But first, for those who are statisticians, it's important you emphasize you have to show statistically significant impact. But more than that, if a policy is justified, if a policy is one that a local government can say, we're doing this for health reasons, for safety reasons, for traffic reasons, then it's going to be OK under the Fair Housing Act.

    So, we call it really an unjustified disparate impact standard. And that's why, for the last 40 years, it hasn't been leading to things like rampant racial quota and constitutional questions haven't been an issue here.

  • HARI SREENIVASAN:

    Mr. Kasarda, will this change how perhaps business gets done?

  • RALPH KASARDA:

    It may, in that this decision touches on housing decisions by local governments, zoning decisions. In one previous case, it touched on efforts by a city to enforce its housing code.

    It doesn't touch on lenders, on insurance companies, and those are governed — those entities are governed under the Fair Housing Act. So this may cause concern among the business community by the fact that it wasn't addressed in this case, and their concerns were not addressed. And this may lead to further litigation against those entities.

  • HARI SREENIVASAN:

    Ms. Johnson, does this change any of the underlying behavior, or perhaps what could be structural patterns?

  • OLATUNDE JOHNSON:

    Well, the hope is that it will.

    I mean, it's part of increasing efforts to really do more around enforcement in fair housing. And so some of this is litigation that is done by private actors. Some of it has to come from the government. An important part of this was the Housing — Department of Housing and Urban Development has made renewed efforts to implement disparate impact and other provisions the Fair Housing Act that say you have to affirmatively further fair housing.

    So, the hope is that it would change things on the ground. And I just want to mention here that the purpose of the Fair Housing Act was to address government practices, as well as private practices. And that requires addressing, sometimes, local government practices.

    And Kennedy really reaffirms this element of the Fair Housing Act when he says that questions like discriminatory zoning, when you have zoning barriers that are not justified by any other kind of policy, even if you can't smoke out discrimination, if they have a disparate impact, they exclude people based on family status or based on race, that's not promoting the integrative purposes of the Fair Housing Act.

    So, that's important. And the hope is that public and private enforcement will continue to have an impact on this.

  • HARI SREENIVASAN:

    Mr. Kasarda, reading the opinion, were there other openings for future challenges here, or do you see the possibility that this could be interpreted narrowly, just in this case?

  • RALPH KASARDA:

    I think the opportunity would be on a case-by-case basis. And that is whether an outcome does create a constitutional problem. That decision would have to be attacked individually.

    I think the — it's pretty clear that the Fair Housing Act encompasses claims for disparate impact. That issue is closed. So, it would be on a case-by-case basis.

  • HARI SREENIVASAN:

    All right, Ralph Kasarda of the Pacific Legal Foundation, Olatunde Johnson of Columbia Law School, thanks so much for joining us.

  • OLATUNDE JOHNSON:

    Thank you.

  • RALPH KASARDA:

    And thank you.

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