Supreme Court about to devastate housing equality

[Guardsman Bass]

This is in the article, but basically the Supreme Court is about to make it much, much harder to actually bring a suit of racial discrimination in housing to court unless you conveniently find e-mails/documents where the company officially ordered people to discriminate against minority buyers. Naturally, Justice Roberts (the man who gutted the Civil Rights Act's protections in the South against voter registration abuse) is taking the lead.

For four years, civil rights advocates have struggled to keep the Supreme Court from eliminating a key prong of federal fair housing law. This year, their luck is probably going to run out. On Wednesday, the Supreme Court will hear oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case that could leave many victims of housing discrimination unable to win their case in court. Based on the justices’ unusual eagerness to hear the issue presented by Inclusive Communities, their decision is likely to end badly for civil rights.

Nearly half a century after President Lyndon Johnson signed the federal Fair Housing Act, which bans many forms of discrimination in housing, racial discrimination remains a serious problem in the housing market. A study on behalf of the Department of Housing and Urban Development determined that black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than white houseseekers, even if they have similar credit or housing interests. During the subprime lending boom, black borrowers with good credit were 3.5 times as likely as whites with similar credit scores to receive higher-interest-rate loans. Latinos were 3.1 percent times as likely to be shunted into such loans. In 2009, the Federal Reserve determined that, even when controlling for income and similar criteria, African Americans were twice as likely to be denied a loan altogether.


One reason why housing discrimination persists is that it is difficult to root out. Landlords, homeowners and banks typically do not advertise their racist motivation when they refuse to do business with someone because of their skin color. Often, people of color are simply left to wonder why they did not get to move into the home they wanted. To help uncover hidden discrimination, victims of housing discrimination may file what are known as “disparate impact” discrimination cases. In essence, these cases allow a plaintiff to prove discrimination based on statistical evidence without having to uncover a smoking gun document where the defendant says “I did this because I don’t like racial minorities.” Thus, for example, if a housing discrimination plaintiff can show that a lender’s policy led to the average minority borrower being hit with significantly more fees than similarly situated white borrowers, that can be enough to show disparate impact.

The Justice Department wielded disparate impact lawsuits to great effect against lenders accused of race discrimination. In a suit against the mortgage lender Countrywide, for example, the company agreed to pay $335 million to settle claims that it “charged higher fees and rates to more than 200,000 minority borrowers across the country than to white borrowers who posed the same credit risk.” In one year, for example, the Justice Department found that “Countrywide employees charged Hispanic applicants in Los Angeles an average of $545 more in fees for a $200,000 loan than they charged non-Hispanic white applicants with similar credit histories.” Yet, without the ability to bring a disparate impact suit, it is far less likely that the Justice Department could have prevailed in this case.

Eleven of the twelve federal appeals courts that have jurisdiction over fair housing claims have held that disparate impact suits are authorized by existing law (the twelfth, the United States Court of Appeals for the District of Columbia Circuit, has not yet considered the question). Yet, despite this consensus among federal appeals courts, the Supreme Court took a case in 2011 claiming that disparate impact housing suits are not allowed. The fact that the justices reached out to take this case when every single federal appeals court to consider the question had reached the same decision was widely viewed as a sign that the Court’s conservative bloc was eager to change the law. Future Secretary of Labor Tom Perez, who was then a senior Justice Department official, helped broker a settlement that kept the Supreme Court from deciding this first case.

In 2013, a similar settlement agreement kept the Supreme Court from deciding the issue again.

Now, however, the issue is before the justices once again. There can be little doubt, based on the Court’s repeated decisions to take up this issue, that the justices are eager to decide the case. Given the Roberts Court’s general skepticism towards civil rights claims, the future of federal fair housing law is probably going to look very bleak for victims of discrimination.

Got that? As long as a real estate company or mortgage lender isn't stupid enough to officially state in their e-mails or rules that they're going to discriminate against minorities, they can do so. If they cover it in some other obfuscatory bullshit (like Countrywide no doubt did), then they're scot-free.

[Simon_Jester]

The argument that you can't sue someone for discrimination on the grounds that they actually do discriminate, by presenting evidence that they do so even after controlling for all other factors, is...

Well. Is there any precedent for the idea that law in general 'shouldn't' work that way?

I mean, Supreme Court justices generally don't outright make shit up, they at least present actual arguments grounded in constitutional law. So what could they argue here?

[Guardsman Bass]

They'd probably just draw an ultra-narrow definition of "discrimination", such that you have to actually prove conscious intent to discriminate versus discrimination that emerges from patterns of behavior.

[Simon_Jester]

It would then seem proper to define "negligent discrimination" under the law as a response, for cases when a reasonable person ought to be able to see that discrimination is taking place by observing that, well... discrimination is taking place.

Also, if they DO try that ultra-narrowing, it will set a problematic precedent for other areas of regulatory law, because there are all sorts of crimes on the books that you commit by actually doing the wrong thing according to some specified definition of 'wrong.' And where criminal intent is basically assumed, because nobody runs a large business in a particular way for any length of time unless that is their intention, and because ignorance of the law and its requirements is no excuse.

[Edi]

The SCOTUS has been known to make up all sorts of shit recently that has no real basis or even logic behind it, in order to push through a particular political agenda. Scalia especially is a repeat offender.

[Guardsman Bass]

The "race" thing in particular is Roberts at work. He'll probably write the opinion on this one, and he was the key figure in gutting the Civil Rights Act protections against predatory voter registration requirements.

[Simon_Jester]

I cannot shake the feeling that Scalia in particular has been setting up the Court to have to greatly undermine its own authority as a source of constitutional law 20-30 years down the pike, because the real constitutional scholars will have to go back and overturn all the dumb pseudo-precedents he's been trying to set in pursuit of his non-activist judicial activism.

[RogueIce]

The argument that you can't sue someone for discrimination on the grounds that they actually do discriminate, by presenting evidence that they do so even after controlling for all other factors, is...

Well. Is there any precedent for the idea that law in general 'shouldn't' work that way?

I mean, Supreme Court justices generally don't outright make shit up, they at least present actual arguments grounded in constitutional law. So what could they argue here?

McClesky v. Kemp is the closest I'm familiar with. Now keeping in mind I am not a lawyer and all the usual disclaimers, my (very, very basic) understanding of that decision was, in essence: discrimination may exist in the system, but you have to prove it was discrimination in your particular case and citing that there may be discrimination in the broader system is insufficient proof taken on its own, although it can be used as evidence in addition to whatever else you can gather that is deemed valid.

Basically there was a study showing racial disparities in the application of the death sentence in Georgia (which is where this case was from) but the Court decided that such evidence - even if one were to grant it is true - was insufficient by itself to prove that discrimination which affected the result of the defendant's sentence had actually occurred.

Wikipedia's summary of the Court's opinion (so take it for what it's worth):

The Court, in an opinion by Justice Lewis Powell, held that the statistical study did not present substantial evidence that would require a reversal of petitioner's conviction. The Court concluded that the lower court had properly applied Georgia law.

The McCleskey ruling said that, even if Baldus' statistical data were accepted at face value, the defense failed to show evidence of conscious, deliberate bias by law officials associated with the case, and dismissed evidence of general disparities in sentencing, such as the Baldus study, as "an inevitable part of our criminal justice system."

So this would seem like a possible precedent for them to cite.

Basically: maybe discrimination does exist, maybe this company even has a history of it, but you have to prove that you individually were discriminated against. Good luck.

[Wing Commander MAD]

I am curious about something regarding how this law works.

The article makes it sound like it can be applied to homeowners and landlords as well as banks and lending institutions. I can easily see how you could provide statistical evidence for the latter two regarding discrimination, and maybe with landlords, if they owned enough properties and/or had a high enough turnover of tenants or enough applications. I can also see how this could be applied to real estate agents/real estate agencies. How exactly would you provide statistical evidence against a homeowner though? I doubt your average home receives enough offers to draw any kind of statistical conclusion from.

[Adam Reynolds]

Why is anyone surprised? This is the same court that effectively gave corporations religious freedom and in their official ruling stated that it should not set precedence. Isn't that supposed to be the point of the Supreme Court?

I cannot shake the feeling that Scalia in particular has been setting up the Court to have to greatly undermine its own authority as a source of constitutional law 20-30 years down the pike, because the real constitutional scholars will have to go back and overturn all the dumb pseudo-precedents he's been trying to set in pursuit of his non-activist judicial activism.

That would actually make a great deal of sense, almost an inverse of Marbury v. Madison.