A narrow 5-4 Supreme Court majority Thursday okayed the use of a legal theory called “disparate impact” in civil rights cases, preserving a key tool used to prosecute cases where there is little, if any, evidence of overt discrimination.
The ruling was a victory for civil rights groups and President Obama’s administration, which have pushed the theory as a means to prosecute discrimination cases that would otherwise be hard to prove.
The ruling came in the case Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project, Inc., which involved whether disparate impact claims could be made under the Fair Housing Act.
The disparate impact theory holds that it is not necessary to show any intent to discriminate in civil rights cases. If the outcome of any policy, procedure or action can be shown to simply have a disproportionate negative effect on a minority group, then that is legally sufficient to prove discrimination.
A majority led by the court’s liberal justices agreed. “Recognition of disparate impact liability … plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment,” the opinion stated.
The justices added that the theory applied in particular to housing discrimination through zoning laws and other restrictions, the issue in the underlying case. “Suits targeting such practices reside at the heartland of disparate-impact liability,” the majority wrote.
The opinion was written by Justice Anthony Kennedy, who as joined by Justices Elena Kagan, Sonia Sotomayor, Ruth Ginsburg and Stephen Breyer.
The opinion did place some limits on the use of the theory though, stating that litigants still had to show a direct connection between the outcome and the entity that was allegedly responsible.
“[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity,” the opinion stated.
The case involved a claim by a nonprofit group that the Texas department caused segregated housing patterns by granting numerous affordable housing tax credits in urban areas heavily populated by African-Americans. The nonprofit group alleged this unfairly kept the tax credit recipients out of white suburban areas.
The high court did not rule on the underlying claim in the case, just the question of whether disparate impact could be used in it.
In their dissent, the court’s conservative wing stated flatly that the text of the Fair Housing Act does not authorize disparate impact claims and that the theory was in any case inherently unfair because it could be used to punish actions done in good faith.
“Here is an example. Suppose that Congress increases the minimum wage. Some economists believe that such legislation reduces the number of jobs available for ‘unskilled workers,’ and minorities tend to be disproportionately represented in this group. Assuming for the sake of argument that these economists are correct, would it be fair to say that Congress made jobs unavailable to African-Americans or Latinos ‘because of ‘ their race or ethnicity?” the conservative justices asked.
Justice Sam Alito wrote the dissent, which was joined Justices Antonin Scalia, John Roberts and Clarence Thomas.
In a separate dissent, Thomas argued that use of disparate impact allowed defendants to be guilty until proven innocent and that was itself hurting minorities. He cited the case of the Houston Housing Authority, which has 43,000 families on its waiting lists.
“Because Houston is a majority-minority city with minority concentrations in all but the more affluent areas, any HHA developments built outside of those areas will increase the concentration of racial minorities. Unsurprisingly, the threat of disparate-impact suits based on those concentrations has hindered HHA’s efforts to provide affordable housing,” Thomas said.
