In one of the biggest Supreme Court cases of the year, Justice Antonin Scalia seems destined to cast the critical vote. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, argued late last month, concerns the Fair Housing Act of 1968, specifically its prohibition of discrimination in housing.
The FHA makes it unlawful “to sell or rent after the making of a bona fide offer, or to refuse to negotiate for
the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status or national origin.” This provision plainly forbids the “different” or “disparate” treatment of individuals because of race or one of the other proscribed grounds—what is commonly called intentional discrimination.
But does the statute also prohibit “disparate impact”—in which a practice neutral on its face and nondiscriminatory in its intent has a disproportionate effect, statistically expressed, on some racial or other protected group?
The answer seems clear upon consideration of the following: When Congress has outlawed disparate treatment, it has used certain language—the “because-of-race” formulation in the FHA quoted above being a good example—but when it has targeted disparate impact, it has included some different language as well. Thus, Title VII of the Civil Rights Act of 1964 outlaws practices that “adversely affect” an employee because of that individual’s race, color, religion, sex, or national origin. The Age Discrimination in Employment Act has a provision to the same effect, forbidding practices that “adversely affect” an individual because of that person’s age.
Writing at ScotusBlog, federal appellate lawyer Will Consovoy says that Congress obviously knows how to legislate against disparate impact. Yet it has never done so with respect to housing. Neither “adversely affect” nor its equivalents are in the original FHA or the amendments added to it in 1988. Concludes Consovoy, “This is not a hard case.”
You would think Justice Scalia, one of the Court’s great textualists, would see it that way, too, and could be counted on as a vote against reading disparate impact into the FHA. But during the argument Scalia suggested that three scattered provisions in the 1988 amendments were added to bar some specific disparate-impact lawsuits, and that this might mean that in all other circumstances such lawsuits were to be permitted. Scalia said that in the statute as amended there “seems to be an acknowledgment that there is such a thing as disparate impact.”
There is a persuasive reply to Scalia (it being duly noted that he might have been assuming the role of devil’s advocate). To begin with, it is common for statutes to have redundant provisions. That alone could explain the anomalies in this case. It is also just as easy to read the provisions at issue as clarifying what is and is not “disparate treatment” as it is to read them as making three curious disparate impact exemptions—especially since the amendments did not codify disparate impact.
In the amendments, Congress added new prohibitions of discrimination on grounds of familial status, handicap, and real-estate appraisals; it also created exemptions to them that clarified their reach in three sticky situations. To judge by the terms of the exemptions, Congress didn’t want occupancy limits to be regarded as discrimination against families with children—and thus targeted in lawsuits claiming disparate treatment. Nor did it want “handicap” to become a basis for claims of disparate treatment made by convicted drug dealers, as opposed to former drug addicts, trying to qualify as handicapped. Nor, finally, did Congress want real-estate appraisers held liable for disparate treatment when they simply follow market pricing. The amendments to the FHA thus do not have to be interpreted as acknowledging disparate impact.
The importance of Scalia in this case is evident. If he concludes that as a matter of statutory interpretation the FHA does not authorize disparate impact liability, and if the other judicial conservatives and Justice Anthony Kennedy agree, as seems likely in this scenario, he will establish a five-justice majority.
On the other hand, if Scalia believes that the FHA does provide for disparate impact, he will be one of five justices—the other four being the Court’s judicial liberals—taking that view. But that will not necessarily result in a 5-to-4 majority, because Scalia also sees disparate impact from a constitutional perspective. Indeed, it’s possible that he would vote against a disparate impact reading of the FHA for constitutional reasons.
Consider that in the 2009 Ricci case, Scalia wrote separately to identify a question that he felt the Court had postponed and must someday resolve: “Whether, or to what extent, are the disparate-impact provisions of Title VII consistent with the Constitution’s guarantee of equal protection?” For Scalia, the Title VII provisions are inconsistent with equal protection if they lead to race-based actions—such as an employer’s deciding to hire (or not) or promote (or not) some workers on account of race or ethnicity in order to avoid disparate impact liability.
The issue transposes to this case: A landlord might take race-based action in rental decisions to avoid disparate impact claims. Scalia may well see the same problem in housing as he does in employment, and if he does—and wishes to address the tension—he will likely invoke “constitutional avoidance” (or “constitutional doubt,” as he calls it in his book Reading Law). This is a canon of statutory interpretation that holds, to quote Reading Law, that “a statute should be interpreted in a way that avoids placing its constitutionality in doubt.” It would seem to compel an interpretation of the FHA that defines discrimination in terms only of disparate treatment.
Should Scalia take that route, there could result a plurality opinion in which five justices agree on the judgment but split on the rationale for it. Thus, Scalia, perhaps joined by Justice Clarence Thomas, would vote against disparate impact in order to avoid constitutional problems, while Chief Justice John Roberts and associate justices Samuel Alito and Kennedy (and perhaps Thomas) would vote against it on purely statutory grounds.
A decision is in the offing. It has taken a long time to get to this point. The Court accepted cases in 2011 and 2013 that presented the same question but which the administration and its political allies, fearing they’d lose, managed to get withdrawn just weeks before oral argument. Now, at least, the argument in the third of the disparate impact cases in the Obama years has actually been heard—as scheduled. May an actual decision now ensue.
For Texas.
