Another View: Housing case is about law’s credibility

Wencong Fa
Wencong Fa

Addressing a current U.S. Supreme Court case on the Fair Housing Act, attorney Bill Lann Lee wrongly suggests that the issue is “whether the act’s protections should be cut back.” (“Martin Luther King’s legacy on fair housing is in jeopardy,” Viewpoints, Jan. 19)

To the contrary, the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is about ensuring the act’s credibility by making sure it protects against real discrimination established by real evidence, not merely by hunches drawn from number-crunching.

At issue is whether numerical outcomes alone – a policy’s “disparate impacts” (or different statistical effects for different racial groups) – are enough to establish that the policy amounts to illegal discrimination. The Supreme Court is being asked whether a housing discrimination claim can be brought without any showing – or even any allegation – of intent to discriminate.

The answer is “no,” according to a fair reading of the act and its legislative history, along with relevant Supreme Court precedents. The court has ruled that an act is discriminatory when an uneven effect is combined with a discriminatory motive.

All agree that disparate impact may be used as one tool in determining discrimination. But for a credible finding of discrimination, statistical evidence should be used in conjunction with the full record – history, prior conduct and other objective factors.

That’s the only rule that makes sense. Plenty of nondiscriminatory acts lead to differential effects. For example, a business may charge the same price to all customers for cars, televisions, legal services and so on. That may affect members of some races more than others. Yet no one would say that the business discriminated on the basis of race. In fact, it’s discrimination to charge different prices to different people just because of their race.

Our opposition to effects-only liability is that it treats people solely as members of their racial group rather than as individuals. Just as there is more to our neighborhoods than their racial composition, there is more to people than their race. We hope that the court will move the nation closer to a day in which its people are judged not by the color of their skin, but by the content of their character.

Wencong Fa and Ralph Kasarda are attorneys with the Pacific Legal Foundation who wrote an amicus brief filed with the Supreme Court in the Inclusive Communities Project case.