Supreme Court Hears Arguments Against Landmark Housing Equality Legislation

by James F. McClister

The Wealth Gap is Growing

Since its inception, FHA has been used as a primary armament in the effort to combat widespread residential segregation, which, at the time, was seen as the country’s “major domestic problem,” according to Dennis Parker, director of the racial justice program for the ACLU. Amidst the chaos leading up to King’s death, President Johnson established the Kerner Commission, charged with investigating the root causes of the widespread unrest. The commission’s conclusions pointed largely to “pervasive discrimination and segregation in employment, education and housing, which (had) resulted in the continuing exclusion of great numbers of Negroes from the benefits of economic progress.”

While FHA and surrounding legislation did much to discourage discrimination and segregation, it failed to clear the nation’s thick miasma of racial prejudice.

Since 2007, wealth inequality by race has exploded, according to the Pew Research Center, which found that in 2013 the net worth of white households were approximately 13 times greater than that of black households, and 10 times greater than that of Hispanic households. The current gap between blacks and whites is the most profound it’s been since 1989.

A Divided Bench

The Court is expected to issue a decision before July, but an ideologically divided bench makes outcomes hard to predict.

While listening to arguments in the case last week, Justice Antonin Scalia told Michael Daniel, a lawyer for ICP, that “racial disparity is not racial discrimination,” arguing the relevance of the tax credit’s disparate impact. He later used the NFL as an analogy to bolster his criticism, saying, “The fact that the NFL is largely black players is not discrimination.”

Several banks, mortgage companies and right-leaning political groups have come forward as critics of ICP’s position, AP said, many of whom argue that FHA shouldn’t extend to disparaging acts not motivated by intentional discrimination. Chief Justice John Roberts, in agreement with Scalia, also cast serious doubts on the validity of ICP’s complaints, pointing out the difficulty in categorizing impacts as “good” and “bad.”

During the hearing, Texas Solicitor General Scott Keller made specific mention of the lack of clear language supporting discriminatory-impact lawsuits in FHA. But Justice Ruth Bader Ginsberg countered, calling the official’s argument “a little artificial,” as FHA wasn’t approved for use in employment discrimination cases until 1971.

Should the Court choose to uphold the lawsuit and effectively alter the definition of FHA, the impacts could be far reaching and force states to consider how seemingly unrelated policies might inadvertently disparage a minority group.

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