Dallas "Disparate Impact" Case Before Supreme Court Next Week. Maybe Not a Good Thing.
For better or for worse, a fair housing case filed by Dallas plaintiffs will be heard by the U.S. Supreme Court next week. It deals with the "disparate impact" doctrine of discrimination -- the idea that if you do something that discriminates against protected groups, it doesn't matter whether it was intentional.
The for-better-or-for-worse part is this: Defenders of disparate impact -- the folks who think measuring impact is a fair way to find discrimination -- bent over backwards to keep two earlier disparate impact cases from getting to the Supreme Court.
Why? Because they have reason to fear that the court led by Chief Justice John Roberts is itching to toss disparate impact into the commode of history. That's why everybody from the White House to George Soros worked to get the earlier two cases settled before the Supreme Court could get its hands on them.
Trial courts and even the conservative 5th U.S. Circuit Court of Appeals have upheld disparate impact. Congress in several rewrites of various anti-discrimination laws has not attempted to take out disparate impact. Disparate impact, in other words, could be taken as a pretty settled doctrine, one that most of the key players are OK with, so that the Supreme Court could have just left it alone. That makes the court's appetite for a whack at it all the more scary to defenders of disparate impact.
In a Washington-based national telephone press conference about it yesterday morning, Sherrilyn Ifill, head of the NAACP Legal Defense and Educational Fund (and cousin to PBS Washington Week moderator Gwen Ifill) warned that the Supreme Court wants this case bad, and for what she considers bad reasons.
"The court has sought to hear this case and sought to hear two others before it," she said, "despite the fact that there has been uniform interpretation of that question by every appellate court to have considered the issue and despite the fact that in this case there is uniform interpretation by HUD, the agency assigned to manage the Fair Housing Act, and despite the fact that HUD has recently released guidelines describing what the obligations are of communities under the Fair Housing Act.
"This case and the court's aggressive desire to hear this particular issue are important because without question the court is poised to do damage to a key means of vindicating claims under the Fair Housing Act."
After a couple more presenters touched on the wonderful role of HUD and the way disparate impact helps HUD enforce the federal doctrine of "affirmatively furthering fair housing," I felt compelled to say something odd. I mentioned how right after the new HUD secretary got sworn in HUD took a total dive on what would have been a benchmark fair housing complaint against Dallas (the case, not the one going before the Supreme court, known locally as Lockey and MacKenzie).
I asked if they were all real sure that HUD and the White House were behind them on this. I got a very nice answer from John P. Relman of Relman, Dane & Colfax, the nation's top fair housing law firm, a response that a less nice person might have expressed as "Whaaa?" He said as far as he knows HUD and the White House are foursquare behind disparate impact, damn the torpedos, never say die and so on. Relman, Dane, by the way, is the firm representing Curtis Lockey, one of the developers who accused Dallas of enforcing racial segregation by policy. As far as I know, that lawsuit is still alive.
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But the HUD complaint against Dallas is six feet under, and for a week before that happened some pretty good sources were telling me the word all over HUD headquarters in Washington was, "DIVE! DIVE! DIVE!" So I guess we'll see how serious an ally HUD will be to the defenders of disparate impact when this Supreme Court case gets going. Maybe they'll be tough for it if they think it's going to lose anyway. 'Bout how they roll.
This case (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project) is the work of veteran Dallas fair housing lawyer Mike Daniel and his fellow fair housing gladiator, Elizabeth Julian, head of the Inclusive Communities Project, which seeks to force lily-white suburbs to take subsidized housing, sometimes successfully.
See also: What's a Million Bucks Worth?
Here is my worry. Let's say disparate impact goes down in flames in the Inclusive Communities case at the Supreme Court. Put that together with HUD's tank-diving trick on the Lockey complaint: Dallas will have been at the center of more damage to civil rights, especially equal protection, than has happened since ... well, you know, since the Klan ran Dallas. Not a thing to brag about, perhaps.
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