Supreme Court Upholds Housing Discrimination Protections

The Supreme Court on Thursday ruled that individuals affected by discriminatory housing practices can still seek remedies even if they cannot prove the discrimination was intentional.


In a sharply divided and surprising 5-4 ruling, the court upheld the notion that the Fair Housing Act of 1968 allows those affected to challenge unfair housing practices, such as lending rules, rental policies and zoning laws that have a harmful impact on minority groups, even if there is no proof that companies or government agencies intended to discriminate.

While courts previously had agreed that so-called “disparate impact” could be grounds for lawsuits against banks, governments, landlords and others who make housing decisions that disproportionately impact minorities, opponents challenging the law argue that it was intended only to ban intentional discrimination.

The theory of disparate impact in U.S. anti-discriminations law argues that practices that do not directly discriminate, yet have the effect of putting certain groups at a disadvantage, may be considered discriminatory and illegal if they have a disproportionate adverse impact on persons in a protected class.

“The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society,” said Justice Anthony Kennedy, writing for the majority. “Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”

Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, said language in the housing law banning discrimination “because of race” allows for disparate impact cases, adding that those lawsuits “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

In dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, said disparate impact was not specifically allowed in the text of the housing law and allowing so was “a serious mistake [that] will have unfortunate consequences for local government, private enterprise, and those living in poverty.”

The latest case involved an appeal from Texas officials accused of violating the Fair Housing Act by awarding federal low-income housing vouchers in poor, minority neighborhoods rather than in majority-white suburbs.

The Inclusive Communities Project, Inc., a Dallas-based fair housing group, argued that even if there was no motive to discriminate, the policies still harmed Black residents. The group claimed the action was perpetuating segregated neighborhoods and denying Blacks a chance to move into areas with better schools and lower crime.

“This decision will have a very profound impact on millions of Americans going forward at a time when we need every tool we have in the arsenal of civil rights,”Dennis Parker of the American Civil Liberties Union racial justice program said in a statement last month in anticipation of the Supreme Court’s ruling.

The White House issued a statement saying the decision “reflects the reality that discrimination often operates not just out in the open, but in more hidden forms.”

Sherrilyn Ifill, president of NAACP Legal Defense Fund, told reporters outside the court that the housing law was critical in bridging the nation’s racial divide, especially in light of the church shooting in Charleston. “Anyone who has been paying attention in the last week knows that we can no longer afford to live the way we have as two separate bifurcated parts of this country.”

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