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Scalia May Be Surprise Vote in Fair Housing Act Case

Image: Scalia May Be Surprise Vote in Fair Housing Act Case
(Pablo Martinez Monsivais/Associated Press)

By    |   Thursday, 22 Jan 2015 03:20 PM

In oral arguments this week in a case involving a legal theory used to enforce a federal law aimed at ending discrimination in housing, Supreme Court Justice Antonin Scalia appeared to concur with arguments made by Obama administration lawyers, which came as a surprise to many, particularly to lawyers representing the state of Texas.

"But [Texas state Solicitor General Scott A.] Keller very likely was not prepared — and perhaps few in the audience were — for Justice Scalia, who calmly laid out a scenario that would 'kill' the state’s case against a 'disparate impact' remedy," observed Lyle Denniston in a recent post on ScotusBlog.

The case before the justices — Texas Department of Housing vs. The Inclusive Communities Project, involves allegations that state housing authority created a system that encouraged developers to produce housing units in minority neighborhoods, which runs afoul of the goal of racial integration.

Specifically, the case involves the question of whether in enforcing the Fair Housing Act, which provides tax subsidies in the form of credits to developers who build housing projects for low-income occupants, the "disparate impact" doctrine must be applied. Under the legal theory, in order to prove discrimination, it must be shown that the policy results disproportionately affect one group of people regardless of whether the bias was on purpose.

In 1971, the Supreme Court developed the doctrine when it allowed a North Carolina employer to be sued for abandoning an explicitly discriminatory policy preventing blacks from better positions, in favor of another policy with race-neutral qualifications, but that had the same effect, according to The Wall Street Journal.

“This has been the law of the United States uniformly throughout the United States for 35 years, it is important, and all the horribles that are painted don’t seem to have happened, or at least we have survived them,” asserted Justice Stephen Breyer in making the liberal case for upholding the use of disparate impact in housing cases.

While the conservatives on the court disagreed, Scalia seemed to break away when he began to question whether congressional action undermined the contention made by the Texas lawyers that the FHA prohibits only intentional discrimination and not disparate impact.

When Congress amended the law in 1988, courts had decided that disparate impact applied to the FHA, which was reflected in several amendments they passed, according to The Washington Post.

Scalia pressed the Texas lawyers, asking why the fact that Congress amended the law that appeared to recognized disparate impact's applicability to the FHA would not gut their arguments.

“The law consists not just of what Congress did in 1968, but also what it did in ’88. And you look at the whole law," he probed, adding "and if you read those two provisions together, it seems to be an acknowledgment that there is such a thing as disparate impact.”

In response, Keller said he found "it hard to read those two together in any other way than there is such a thing as disparate impact," reported The Associated Press.

"The court’s five conservatives make no secret of their hatred of any kind of race-conscious policy, and at least four of them are probably ready to strip disparate impact provisions from the Fair Housing Act altogether.

At the close of Wednesday’s arguments, the continued survival of disparate impact—one of the most useful tools in preventing housing discrimination for decades—seemed to hang on Scalia’s vote," writes Mark Joseph Stern in Slate.

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In oral arguments this week in a case involving a legal theory used to enforce a federal law aimed at ending discrimination in housing, Supreme Court Justice Antonin Scalia appeared to concur with arguments made by Obama administration lawyers, which came as a surprise to...
scalia, scotus, fair, housing, case vote
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2015-20-22
Thursday, 22 Jan 2015 03:20 PM
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