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Disparate Impact

Texas v. Inclusive Communities will test the principle of Disparate Impact in the Supreme Court

 US Supreme Court, disparate impact and the Inclusive Communities case
    On Jan 21, 2015 the US Supreme Court heard the case of Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project Texas argues that there's no proof of "intent to discriminate" and so there's no discrimination. Advocates point out that intent is not necessary where the discrimination is cooked into the system of business as usual. Advocates call this "structural" or "systemic" discrimination.   
    "Disparate impact" is a term in law that means analyzing a program or policy which appears "neutral" to determine if the program or policy has a bad outcome for members of a protected class. 
    In Dallas, Low Income Housing Tax Credit developments were customarily placed into areas of high poverty concentration. Inclusive Communities Project and individual African American families sued under the Fair Housing Act, claiming that they were denied the opportunity to move to predominantly white communities (with better schools, less crime and more employment) because there was no affordable housing in those communities. The families won their case (and the appeal) based on the principle of disparate impact, namely that the practice of locating government funded housing in segregated communities kept them in a segregated setting. Dallas amended their plan to selecting sites for affordable housing, but then the State of Texas, which issued the Federal credits, appealed to the US Supreme Court.
Why is this important to tenants in Ohio?
  • An adverse decision will deprive Fair Housing advocates of a key tool in fighting discrimination. After 50 years of Fair Housing law, housing providers have become more subtle in the ways in which they deny housing to members of protected classes. You don't see "no children" in rental ads anymore.  You don't find so many cases where female heads of households are charged more for rent than male headed households. Disparate impact analysis exposes seemingly "neutral" policies that fall heavier on members of protected classes. Let's take the discussion away from race for a minute. Another example of disparate impact is a requirement that renter applicants must have a HS diploma (not GED) to apply for subsidized housing. The rule is the same for everyone, but has a disproportionate impact on many protected classes who have lower levels of educational opportunity or learning or developmental disabilities.

  • A finding that "disparate impact" is not a part of the Fair Housing Act will undermine efforts by the Obama administration to create policies to "affirmatively further fair housing" though geographic mobility. The Obama White House has been a champion of the notion that "Zip code is destiny" which basically says: where you live determines much about the opportunities you will have to get ahead in life. Studies (some dating back to the 1970's) seem to show that lower crime, increased educational opportunities, better environmental health, and access to employment are all tied to location.

    In the Washington Post this week, Max Ehrenfreund wrote: "...while segregation between neighborhoods has been steadily decreasing, there are still many places like Ferguson, Mo. where the economic ramifications of decades of racially biased business practices and government policies keep low-income blacks from finding a way out. It's often said on Martin Luther King Day that the civil rights movement still has unfinished business, but somehow, the events of the past year seem to have made that fact especially clear."    
    Predictably these two different ideas about what constitutes "discrimination" has political dimensions. The Court is not expected to rule before late June.

    There's much more on the case and the principle of disparate impact at here

 Local presence for hearing on Inclusive Communities
 "Eric and Vonda Williams will speak about their experiences alongside others who will urge the court not to scale back protections under the Fair Housing Act. Also traveling to Washington is Diana Patton, vice president, chief operating officer, and general counsel for the Toledo Fair Housing Center."   Nice story about the case and nice photos.

Why Disparate Impact is critical to Affirmatively Furthering Fair Housing.

more on disparate impact here.

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