Try, Try Again with the Supreme Court | Center for Equal Opportunity

For many years, the Center for Equal Opportunity tried to get the Supreme Court to rule that there is no “disparate impact” cause of action under the Fair Housing Act. Thus, for example, if the landlord of an apartment building decided to favor potential tenants who did not have a record of violent crime — and this policy ignored race by its terms, in its intent, and in its application — then he could not be held liable for racial discrimination just because the policy had a statistically disproportionate effect on this racial group versus that racial group.

Alas, in 2015, the Supreme Court ruled otherwise, in a 5-4 decision in which Justice Kennedy sided with the Court’s four liberals.

But a couple of weeks ago, the Center for Equal Opportunity, along with our friends at the Southeastern Legal Foundation, filed an amicus brief urging the Court to grant review in a case involving a disparate-impact claim brought under the Fair Housing Act — and to reconsider and overturn that 2015 decision. We know that perhaps this is a long shot, since the petitioner itself does not to take directly this aggressive approach, but our hope is that the new, improved Supreme Court might agree with us that it’s better to admit sooner rather than later that it made a mistake.

You can read our entire brief here. And here is the brief’s “Summary of Argument”:

Less than four years ago, this Court recognized disparate impact causes of action under the Fair Housing Act. Tex. Dep’t of Housing and Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (2015). This means that a person alleging discrimination under the Fair Housing Act now needs to prove only that the defendant’s actions have a disproportionate adverse effect on a racial or other group, even if that defendant selected the criterion without discriminatory motive and that criterion is nondiscriminatory both by its terms and in its application. By contrast, disparate treatment cases are triggered when a defendant takes certain actions because the plaintiff is a member of such a racial or other group. The Fair Housing Act indisputably covers disparate treatment claims and rightfully so, because this coverage is supported by both the Act’s text and history. But those underpinnings do not transfer easily to disparate impact claims. In fact, they don’t transfer at all.

Neither the text nor the history of the Fair Housing Act support recognition of disparate impact claims under the Act. Instead, as Justice Thomas explained, the judicial recognition of disparate impact claims rests on a foundation of “sand.” Inclusive Cmtys., 135 S. Ct. at 2526 (Thomas, J., dissenting). Even more, the construction of any statute to include a disparate impact cause of action raises constitutional problems and should be avoided. This is true not only where state actors are targeted by Congress using the Fourteenth or Fifteenth Amendment; it is also true where public or private actors are targeted by, for example, the Commerce Clause since the disparate impact approach in itself encourages race-based decision making.

The disparate impact approach to civil rights, especially in the interpretation and enforcement of the Fair Housing Act, is untenable as a matter of law and policy. It second-guesses nondiscriminatory selection criteria like that used by the petitioners and actually encourages race-based decision making. Those disturbing abuses of federal power come at the expense of liberty and limited federal government. Although the petitioners did not ask this Court to overrule Inclusive Communities, this case provides an excellent opportunity for the Court to revisit and overrule its fewer than four-year old expansion of the Fair Housing Act to disparate impact claims. The time to address the problems resulting from the disparate impact approach is now.

If this Court chooses not to revisit Inclusive Communities, it should still reverse the Fourth Circuit’s judgment. The lower court’s treatment of the “robust causality” showing required to state a prima facie case lacks rigor, and it is one step removed from the actual protection of a statutorily protected class. As Judge Keenan observed in her dissent, petitioners’ policy “disproportionately affects Latinos not because they are Latino, but because Latinos are the predominant sub-group of undocumented aliens in a specific geographic area.” de Reyes v.Waples Mobile Home Park LP, 903 F.3d 415, 434 (4th Cir. 2018) (Kennan, J., dissenting).

We’ll be keeping our fingers crossed!

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I also wanted to include a couple of items that follow up on the successful resolution of the complaint we filed against Texas Tech, which resulted recently in the medical school agreeing to stop its use of racial and ethnic preferences in admissions. You recall that this was the subject of one of my emails a couple of weeks ago.

First, here’s a clip that appeared on ABC news (the story, which includes an interview with me, appears at the 05:30 – 16:30 mark). Second, I discussed the issues at more length on a Federalist Society teleforum/podcast, which you can listen to here. In addition to talking about the Texas Tech case itself, I go into some detail about the complaint procedures at the Department of Education’s Office for Civil Rights, which is the avenue that the Center for Equal Opportunity successfully used here, and which other conservatives should give serious thought to using. As I explain, OCR’s new head is an intelligent and conscientious conservative, Ken Marcus, and will deal fairly with politically correct as well as politically incorrect discrimination in education programs at both university and the K-12 level.

Second, I discussed the issues at more length on a Federalist Society teleforum/podcast, which you can listen to here. In addition to talking about the Texas Tech case itself, I go into some detail about the complaint procedures at the Department of Education’s Office for Civil Rights, which is the avenue that the Center for Equal Opportunity successfully used here, and which other conservatives should give serious thought to using. As I explain, OCR’s new head is an intelligent and conscientious conservative, Ken Marcus, and will deal fairly with politically correct as well as politically incorrect discrimination in education programs at both university and the K-12 level.

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