Another victory for racism in “post-racial” America?
In 1995, famed columnist Molly Ivins reported that an unnamed Rush Limbaugh listener sauntered into a Texas cafe and said:
“I think Rush is right: Racism in this country is dead. I don’t know what the n****rs will find to gripe about now.”
Based on recent events, I think it’s safe to speculate that the unnamed dittohead may have been Chief Justice John Roberts.
Under Roberts, the Supreme Court has apparently decided that racism is dead and we can just go on about our business untroubled by whatever gripes minority citizens might have. In 2013, he was part of the conservative majority that gutted key provisions of the 1965 Voting Rights Act that protected minority voters from voter suppression schemes enacted by the states. Within hours, several Southern states once constrained to treat their minority voters with a modicum of fairness introduced legislation to curb those rights. And other, non-Southern states, from New Mexico to Montana to Ohio, followed suit, all targeting minority voters with one voter suppression scheme after another.
Now it’s time to put that old dead spectre of racism behind us again, and stop making white landlords and property owners rent or sell property to minorities.
Background: “Making Me Rent to Darkies is Unamerican”
The Court has been hot to?eviscerate the 1968 Fair Housing Act for over three years. Two previous cases that the conservative majority had its eye on were settled before reaching the bench, but now a third case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, is moving forward. Under the current law, it is illegal to “refuse to sell or rent ? 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.” This is known as a “disparate impact” claim ? in this case, whether a owner or landlord’s refusal to rent to minority clients creates a “disparate” discriminatory effect even if the refusal is not directly related to race.
The Inclusive Communities Project is a Texas organization that tries to help lower-income African-American families find affordable housing in the largely white suburbs of Dallas with the specific intent of integrating those neighborhoods; those families receive voucher subsidies, issued by agencies such as the Texas Department of Housing and Community Affairs, to help them defray the cost of housing. The families have to find a landlord willing to accept the vouchers. Unsurprisingly, many of the white landlords refuse to allow those [insert your racial slur here] live among their white renters. Landlords who receive federal tax credits for lower-income (“Section 8”) housing have to accept the vouchers.
The Project sued the TDHCA in 2008, alleging that the agency allocated its vouchers in a racially segregated manner, granting most of the credits to blacks and Hispanics who chose to live in minority areas of Dallas and refusing to grant them to minorities who wished to live in majority-white areas. A federal district court upheld the Project’s argument, finding that the practice violated the FHA due to the “disparate-impact” argument: whether the agency “intended” to act in a discriminatory fashion was irrelevant, because the effect of the practice was discriminatory. The State of Texas appealed the ruling to the US Court of Appeals and got slapped down; now Texas has taken its argument to the Supreme Court. Texas wants the Court to rule that the FHA does not permit disparate-impact claims, and that the Act only prohibits actions that can be proven to have been taken with discriminatory intent.
In other words, it doesn’t matter if black or Hispanic renters get told they can’t live in areas largely inhabited by whites unless those renters can prove the denial was racially motivated. Tough to prove, assuming that the denial wasn’t stamped “N****r Stay Out.”
The Project argues that there is a long body of decisions under the FHA that support disparate impact, and that the clause was the direct intention of the law as passed. (11 of the 12 US District Courts have issued rulings in favor of disparate impact; the 12th has never taken up a case on the matter.) Texas says nuh-uh. The Obama administration is siding with the Project, and the Justice Department is assisting with the case. Now, however, civil rights advocates fear that the Roberts Court will take the opportunity to once again overturn a key element in federal law that protects minorities from housing discrimination.
Grim Prospects
What will the Court do? No one can be sure. But Ian Millhiser, the legal expert for Think Progress, is not sanguine about the Fair Housing Act remaining untouched:
There can be little doubt, based on the Court’s repeated decisions to take up this issue, that the justices are eager to decide the case. Given the Roberts Court’s general skepticism towards civil rights claims, the future of federal fair housing law is probably going to look very bleak for victims of discrimination.
It is beyond ironic that what glimmer of hope for the FHA to remain intact lies with the unlikeliest of justices, Antonin Scalia. In preliminary arguments, Scalia rattled Texas Solicitor General Scott A. Keller?when he laid out a reason why the law should remain as it stands:
“What hangs me up [is that Congress in 1988 made some changes in the twenty-year-old law that showed it was fully aware that such a remedy was well-established.] You have to look at the whole law, and, when all parts are read together, there is such a thing as ‘disparate impact.’ You don’t look at each little piece, you look at the whole law.?
But if liberals and civil rights advocates are hoping against hope that Scalia will vote with the four liberals and moderates on the Court, Scalia also gave indications that he might well support stripping the FHA of the “disparate impact” provision. He was sympathetic with the argument that upholding the provision would force local governments to adopt racial quotas to defend themselves against such liability, an argument that others on the court, including Roberts, Samuel Alito and Anthony Kennedy, seem to favor.
It will likely be a few months before the Court issues its ruling. But the prospects of losing yet another key provision that prevents corporations, landowners and landlords from denying housing to American citizens on the basis of race are frustratingly strong.
Meanwhile, do yourself a favor, and watch this seven-year old video made by Congressional Democrats who were celebrating the 40th anniversary of the Fair Housing Act. Remind yourself why this legislation is so critically important to protecting America’s most fundamental freedoms.
