Sunday, November 2, 2014

The Road from Texas to the End of the Second Reconstruction through the FHA

On October 2, the Court granted cert on a deceptively simple question: whether disparate impact claims are cognizable under the Fair Housing Act.  The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  This is the Court's third attempt since 2012 to answer this question, having granted cert in two prior cases, only to see the parties settle their disputes before the Court could answer it.  The most recent case, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., was dismissed on November 15, 2013.  Eleven months later, the Court is ready to try again.

One need not be terribly cynical to wonder why the Court is so insistent.  

I smell a rat.
To be sure, one could give the Court credit.  These cases could be nothing more than a corrective to the misguided and clearly erroneous implementation of the disparate impact standard in direct tension with the plain meaning of the law.  This is a view of the Court as a humble statutory interpreter acting as the faithful agent of Congress.  The housing law, after all, does not support a disparate impact reading as other federal laws do.  That a majority of federal circuits and a 2013 rule by the Department of Housing and Urban Development took the opposite view might explain why the Court seems so insistent.  This is an issue out of control.

But I think there is something else going on here.  I do not think for one second that the disparate impact standard has a chance at the hands of the conservative majority on the Court. Disparate impact liability is a way of looking at the world, at facts, at life.  Take, for example, the following graph:

What do we make of the fact that Black Americans, and especially Black American men, are disproportionately incarcerated?  I will let the reader reach her own conclusions; the point is simply that the numbers are skewed, and the legal question is whether we will continue to use disparate impact as a tool to fight discrimination.  If you believe, as Chief Justice Roberts does, that "things have changed dramatically" in the last 50 years, then disparate impact analysis might not tell you all that much.

But again, why the insistence? Because once disparate impact falls, the end of the Second Reconstruction is within reach.  Think of the role played by disparate impact in antidiscrimination law.  Look no further than Title VII, or the Housing Act, or Section 2 of the Voting Rights Act.  And here is the beauty of the Federal  Housing Act.  The Court will give us an opinion professing fealty to Congress and the statutory language.  The Court will also give us much broader language striking at the heart of antidiscrimination and the powers of Congress.  This language will be nothing more than dicta, of course.  But in the next case, the language will take on a life of its own and form part of our longstanding legal traditions.

Don't believe me?  Go read Shelby County, where the principle of equal sovereignty, hardly central to the Court's decision in Namudno v. Holder, attained fundamental status four years later.  Put a different way: the Court insists on "correcting" the housing law because it offers it an easy statutory conduit to reach its much larger goals.  We have seen this before.  And we will see it again.

Thomas Perez, then-assistant attorney general for civil rights, could smell a rat too.  Hence the lengths to which he went to settle the prior cases and keep the housing law from the Court.  No settlement in sight this time, the gig is up.  The march to the end of the Second Reconstruction continues.

Stay tuned.

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