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The Supreme Court Must Preserve the Discriminatory Impact Standard: Fair Housing Is a Bedrock Civil Rights Protection

Fair housing is a bedrock civil rights protection, crucial to our nation’s core values of equal opportunity, human dignity, and just democracy for all. In the face of deeply entrenched patterns of residential segregation and exclusion, Congress enacted the Fair Housing Act to provide for fair housing throughout the United States. The Act has helped to free many communities from discrimination and connect millions of Americans to opportunity. Due to a variety of factors – some influenced by government, some not – many neighborhoods and communities do not reflect the diversity of our nation. Congress passed the Fair Housing Act in April 1968, in the immediate aftermath of the assassination of Dr. Martin Luther King, Jr.

The U.S. Supreme Court is deciding whether the Fair Housing Act will continue to protect people from all housing policies that discriminate in practice, absent proof of intentional discrimination. The Court heard arguments in the case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project on January 21. A decision by the Court is expected by June 2015.

This is the third time the Justices have reached out to address the unjustified discriminatory impact standard under the Fair Housing Act. (The previous two cases were settled by the parties before the Court reached a decision.) That does not mean the result is a foregone conclusion. It takes only four of the Court’s nine Justices to agree to hear a case, but a majority of five to decide the outcome of a case. Court watchers believe four members of the Court (Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) are likely to uphold the discriminatory impact standard under a strong and effective Fair Housing Act. Observers fear that the Court’s four most conservative members (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) could vote to weaken fair housing. As is often the case with civil rights questions, Justice Anthony Kennedy is likely to cast the deciding vote, and may write the controlling opinion.

The following analysis is based on the “friend of the court” brief filed by the Lawyers’ Committee for Civil Rights Under Law and other civil rights advocates, including The City Project, in the Inclusive Communities Project case. The brief focuses on the discriminatory impact standard and racially segregated neighborhoods where many people reside, isolated from high-performing public schools, good jobs, safe parks and streets, a clean, healthy environment, and reliable public services.


Congress recognized that comprehensive legislation would need to target both intentional discrimination and seemingly neutral policies that have unjustified discriminatory impacts based on race, color, or national origin when it enacted the Fair Housing Act in 1968. Each form of discrimination was instrumental in creating and perpetuating the entrenched residential segregation the Act sought to eliminate. The lower courts agree that the Act’s stated purpose to end discrimination requires a discriminatory effect standard; an intent requirement would strip the statute of all impact on de facto segregation.

The Fair Housing Act’s prohibition of unjustified disparate impact remains a powerful and necessary tool for dismantling discriminatory practices and barriers to equal opportunities on a community-wide basis. While public attitudes towards residential segregation have improved in important respects, racial isolation continues to persist in ways that make the disparate impact inquiry necessary.

Conduct prohibited by the Act – both intentional acts and seemingly neutral practices – has produced and perpetuated racially segregated neighborhoods. Residential isolation has effects across generations that continue to limit the opportunities available to our children and grandchildren. Social science evidence confirms the determination of Congress that segregation is harmful and integration is beneficial to educational achievement, access to employment, personal, public, and environmental health, and other keys to a fulfilling life.

Although Attitudes About the Value of Integration Have Improved, Residential Segregation Persists

Approximately half of all high-poverty census tracts in the nation are dominated by a single racial or ethnic group. African Americans and Latinos represent 12% and 16% of the population respectively, yet they make up much smaller percentages of the residents in low-poverty census tracts. This segregation affects everyone, as it isolates people from opportunity that would enable their economic mobility and limits greater economic participation. African Americans are more racially isolated than any other racial group, with 75% of African Americans nationwide residing in only 16% of census block groups. With only one exception (the most affluent Asians), people of color at every income level live in poorer neighborhoods than do non-Hispanic white people with comparable incomes.

Patterns of segregation and exclusion prevent people from living in communities that they can afford, that would connect them to greater opportunity, and that are consistent with their preference for integration and diversity.

Residential Segregation Impairs Educational Integration and its Benefits. Equal housing opportunity is closely linked with educational diversity and achievement. Compelling evidence demonstrates that attending integrated schools is associated with a host of positive educational and life outcomes. Low-income, students of color perform better academically in diverse school settings, with improvements resulting from significant peer effects and the reduction of resource disparities. In addition, research has found that students of all racial backgrounds tend to perform better academically (measured by grades, test scores, and high school and college graduation rates) in racially integrated schools, compared to those who attend schools that are racially and socioeconomically isolated.

Residential Segregation Impedes Access to Economic Mobility. Today, segregation continues to impede access to employment and other resources, such that poverty remains entrenched and mobility out of reach to many people of color.

Residential Segregation Is Associated with Adverse Health and Environmental Effects. Racially or ethnically isolated communities are much more likely to experience environmental hazards and adverse health impacts than are integrated communities, in a way that neither housing preferences nor income and wealth gaps adequately explain. Residents of segregated communities are significantly more likely to experience high-volume releases of toxic chemicals, to breathe high concentrations of harmful air pollutants, and to live in chronically substandard, lead-painted housing. Communities of color are less likely to benefit from reliable municipal services or to enjoy access to grocery stores, private-practice healthcare facilities, and green spaces, such as parks and sports fields. Environmental justice is the environmental arm of the civil rights movement.

Grave public health impacts – including asthma, cancer, diabetes, and infant mortality, as well as psychosocial phenomena like violent crime and post-traumatic stress disorder – are now widely viewed as environmentally mediated consequences of residential segregation.

Federal Courts of Appeals Unanimously Uphold the Disparate Impact Standard

By 1988, when Congress amended the Act, the federal courts of appeals for nine circuits had found the disparate impact standard necessary to enforce the statute. Congress knew this, and intended to prohibit unjustified discriminatory impacts.

Today, the federal courts of appeals in eleven circuits – every circuit to consider the question – have found the disparate impact standard necessary to enforce the Fair Housing Act. These courts unanimously recognize that prohibiting unjustified facially neutral policies that have significant racially discriminatory effects is necessary to achieve the integrated residential patterns sought by Congress.

Under the disparate impact standard, courts assess discriminatory effects, whether the discrimination is justified, and whether there are less discriminatory alternatives for the challenged practice. The inquiry into intent, bigotry, or motive under the intentional discrimination standard is insufficient to achieve equal opportunity and human dignity. Effect, and not intent, is the touchstone for finding a violation, in part because clever people may easily conceal their intent and motivations, but more importantly, because thoughtlessness can be as disastrous and unfair as the perversity of a willful scheme. Conduct that has the necessary and foreseeable consequence of perpetuating discrimination can be as harmful as purposefully discriminatory conduct.

Even if the problem of residential segregation is race based, most fair and effective solutions can be race neutral. On the margins, any remedies that do employ race-conscious measures can be strictly scrutinized on a case-by-case basis.


Without the disparate impact analysis, government and other actors would be able to pursue cleverly concealed, intentionally discriminatory acts and policies, as well as seemingly neutral policies no matter how harsh the impact, how unjustified the action, and how readily available the non-discriminatory alternatives. The adverse consequences of such a ruling would cause harm for generations. The Fair Housing Act demands that we remain conscious of the long-term legacy and effects of historical patterns of housing segregation. To eliminate discriminatory impact claims from the Fair Housing Act and other civil rights laws would fundamentally dismantle our nation’s civil rights protections. The civil rights struggle continues to protect equal opportunity, human dignity, and just democracy for all in and out of court.

Civil_Rights_Memorial SPLA Lin

We will not be satisfied “until justice rolls down like waters and righteousness like a mighty stream” Martin Luther King, Jr. (Amos 5:24)
Civil Rights Memorial, Southern Poverty Law Center, by Maya Lin


The oral arguments before the Supreme Court are available in an audio recording and a transcript. It’s interesting reading.

Download the brief by Bill Lann Lee et al., for the Lawyers’ Committee for Civil Rights under Law and other civil rights advocates, including The City Project.

Download the friend of the court brief filed by the NAACP Legal Defense & Educational Fund, Inc. The LDF brief focuses on dignity, morality, and economics, the legal analysis of the discriminatory impact standard, and the constitutional strict scrutiny standard of equal protection.

Civil rights tools including the disparate impact standard continue to provide important safeguards for human health and life itself. See the Policy Report Using Civil Rights Tools to Address Health Disparities by Michael Rodriguez, MD, MPH; Marc Brenman; Marianne Engelman Lado, JD; and Robert García, JD.

Disparate impact is a long standing safeguard for civil rights. Disparate impact is a legacy of the Civil Right Movement. See the Policy Report Celebrate The Civil Rights Revolution: The Struggle Continues by Robert García and Ariel Collins.