Supreme Court Could Gut Key Provision of the Fair Housing Act

(January 6, 2016 update: CPHA is pleased to announce that the Supreme Court upheld disparate impact claims in a 5-4 vote. Furthermore, while this article focuses on disparate impact as it relates to housing, disparate impact can be applied to other governmental actions as well. For example the NAACP is suing the state over Governor Hogan’s cancellation of the Red Line.

An upcoming Supreme Court decision could result in the gutting of a key provision of the Fair Housing Act.  The Fair Housing Act forbids discrimination based on race, religion, gender, national origin, or disability when it comes to housing.  However, the law does not only protect against deliberate acts of discrimination; it also protects against policies and actions that have “disparate impact” on protected classes.  This means that even if a policy is not deliberately discriminatory, that policy can still be prohibited if it results in negative outcomes for protected populations.

The idea of disparate impact has been recognized for decades by both policymakers and the courts.  However, a case currently before the Supreme Court could change all this.  The case of Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project involves a lawsuit brought against the state of Texas by the Inclusive Communities Project.  The complaint is that the state of Texas disproportionately gives out Low Income Housing Tax Credits (LIHTC) to communities with heavy minority and low income populations.  This prevents those with low or moderate incomes – who are disproportionately racial minorities – from moving to high opportunity areas, and thus contributes to racial segregation. However, due to previous rulings from the Supreme Court, including one that struck down provisions of the Voting Rights Act, there is concern from fair housing advocates that the Court will not uphold the disparate impact provision.

Were the Supreme Court to strike down the disparate impact provision of the Fair Housing Act, it would have clear repercussions for fair housing here in Baltimore.  Earlier this month, the Anne Arundel County Council blocked a workforce housing project in the affluent Severna Park area.  During the Council hearing, a single mother living with a child in a local shelter said that such a project could give her a place to live that she could afford.  Councilman John Grasso made headlines by telling this woman that, “My heart doesn’t go out to you – it just doesn’t… It is unfair for people to turn around and dump their way of living on top of people who have already earned their way of living.” The woman was so humiliated that she left the room.

The importance of disparate impact relates to the method for how the Anne Arundel County Council blocked the development. The proposed development is on land currently zoned  for low density single family homes. However, Anne Arundel County offers a density bonus, which allows for the construction of more residential units than normally permitted, if the developer agrees to build affordable housing.  The Anne Arundel County Council removed the possibility to get that density bonus from not only this site, but also from every location with the same zoning designation. Because this means fewer units for the development, it effectively makes workforce housing financially impossible at this location – and prevents people, like the mother mentioned earlier, from having a home they can afford.

The Anne Arundel County Council did not explicitly state that they were blocking the affordable housing development in order to keep African-Americans out of this area of the county.  Because their actions have that impact, however, fair housing advocates could make a case against the policy and potentially have it overturned.  This will not be possible without the disparate impact principle of the Fair Housing Act.

Expanding affordable housing in high opportunity areas is a key component of the Opportunity Collaborative’s Baltimore Regional Housing Plan.  Removing disparate impact from the equation could make this much more difficult.  Regardless of what happens to the Fair Housing Act, CPHA will continue to work with our allies to ensure that everyone in the Baltimore region has access to opportunity, regardless of income or where they live.

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Gregory Friedman

Gregory Friedman

This article was written by Gregory Friedman. Click here to meet our writing team.

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