The Supreme Court last week ruled 5-4 (Justice Kennedy writing the majority opinion, joined by the four liberal justices) that "disparate impact" claims may be brought under the Fair Housing Act. The court's decision fails to follow the clear language of the statute, and it will encourage race-based decision making in the housing area — exactly what the Fair Housing Act was meant to prohibit.
Here's why. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn't even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color or national origin, but also religion, sex or whatever — then that's enough, even if the policy is nondiscriminatory by its terms, in its intent and in its application.
The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant's needs — some degree of "necessity" for the policy.
The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it not only in housing but in every imaginable situation. In employment, for example, the administration complains if fire or police departments administer physical or written tests that have politically incorrect results, or if companies use criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution.
The disparate impact approach is also used to require the use of a foreign language — on driver's license exams, for example — on the theory that using only English might have a disproportionate effect on the basis of national origin. And, back to the housing area, it has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.
The disparate-impact approach pushes potential defendants to do one or both of two things: Get rid of perfectly legitimate selection criteria or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right.
In other words, we're supposed to stop judging people by the content of their character, and start judging them by the color of their skin.
And the fact of the matter is, there is probably no selection criterion — not a single one — that does not have a disparate impact on some group or subgroup.
Here's the most fundamental point of all: If a business, agency or school has standards for hiring, promoting, admissions or offering a mortgage that aren't being met by individuals in some racial and ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That is what racial preferences do. Second, the government can attack the standards themselves. That is what the disparate-impact approach to enforcement does. Third, one can examine why a disproportionate number of individuals in some groups aren't meeting the standards — such as failing public schools or being born out of wedlock — and do something about it. But this third, most logical option holds little interest on the political Left.
The only silver lining from last week's decision is that Justice Kennedy's opinion itself actually acknowledges the problems raised by the disparate-impact approach, and some of his language toward the end will be useful in stemming the worst abuses. Here's hoping that this language is taken seriously in the lower courts, because the disparate impact approach is a dangerous one, and not just in the housing area.
Meanwhile, Congress needs to act decisively to put an end to this nonsense. It must reject in no uncertain terms the pernicious disparate-impact approach, because anything less will be ignored by the Obama administration — and now, apparently, the Supreme Court.Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined and helped write an amicus brief in this case filed by Pacific Legal Foundation. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.