The Future Of Fair Housing

http://www.citylab.com; June 28, 2018

Hello Everyone:

Yours Truly is a little less giddy today now that the allergies have more or less passed.  How about the England-Colombia game at the World Cup?  It all came down to penalty kicks, with England prevailing 4-3.  England moves on to play Sweden on Saturday.  Okay that aside, on to today's subject: The future of Fair Housing.

Last Wednesday, the headline news of Justice Anthony Kennedy's retirement was blasted around the Galaxy.  To say it was a shock is an understatement.  As he president and Senate contemplate who will be the next nominee will be, we turn our attention to his decisions on fair housing.  Kriston Capps writes in his CityLab article "With Justice Kennedy's Retirement, Fair Housing Is Peril," "Justice Anthony Kennedy wrote the most important decision on fair housing in generation.  He'll almost certainly get to see it overturned in his lifetime."

When Justice Kennedy announced his retirement last week shined the spotlight on the tenuous political dance of the United States Supreme Court.  Justice Kennedy has long been known as the swing vote on a number of hot-button issues such as abortion, the death penalty,and same sex marriage.

Regardless of who the president finally nominates (rumor has it a woman) to fill Justice Kennedy's seat, is "unlikely to see eye-to-eye with him on these topics."  This has fueled the left's fears that SCOTUS with take another look at some of the more controversial case delivered during his tenure: Planned Parenthood v. Casey--go all the way back to Roe v. Wade.

One of the court's most recent decision is already in the president's crosshairs.  Mr. Kappa writes, "In 2015, Kennedy joined Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer in a ruling over 'disparate impact' [citylab.com; June 25, 2015; date accessed July 3, 2018] a legal doctrine that prohibits discrimination even when explicit intent of a policy is not discriminatory."  The Court confirmed, in a 5-4 vote, in the matter of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project the Fair Housing Act of 1968 banned both explicit and implicit discrimination.

The case turns on a rule adopted by the Department of Housing and Urban Development in 2013.  Mr. Kappa reports, "That rule formally recognized the long-held understanding at HUD that the Fair Housing Act forbids housing practices that discriminate on the basis of race, sex, religion, disability, and other federally protected status--whether the discrimination is a stated goal or not."  The SCOTUS ruling confirmed this interpretation of the Fair Housing Act.

However, under the current HUD Secretary Ben Carson, the department announced that is was revisiting its stance on housing discrimination (Ibid; June 21, 2018). It sounds counterintuitive for HUD to reconsider a ban on housing ban but a few weeks ago it issued a federally required notice that it intends to do just that and could lead to a full repeal altogether--despite SCOTUS's confirmation.

The Inclusive Communities case focused on the "distribution of housing tax credits in Texas."  In a previous lawsuit, the housing and social justice non-profit Inclusive Communitiesqa Project (inclusivecommunities.com; date accessed July 3, 2018) argued "hat the way that Texas allocated its Low-Income Housing Tax Credits in the Dallas metro area discrimated against racial minorities.  By concentrating the credits in poorer, majority-minority communities, the state housing department was effective,y denying low-income residents access to opportunity, amenities, and schools of wealthier (and whiter) neighborhoods,...."

The more liberal justices confirmed that this practice was disproportionately negatively affecting affecting racial minorities: the disparate claim.  In order to get there, the majority needed to affirm that disparate-impact liability does exist in the Fair Housing Act.  Writing for the majority, Justice Anthony Kennedy stated,

Recognition of disparate-impact claims is consistent with the FHA's central purpose,.... The FHA [...] was enacted to eradicate discriminatory practices within a sector of Nation's economy [...]  Thes unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.  Suits targeting such practices reside at the heartland disparate-impact liability.