The Power of the Supreme Court's Decision in the Fair Housing Act Case, TDHCA V. ICP

By Roisman, Florence Wagman | Poverty & Race, July/August 2015 | Go to article overview

The Power of the Supreme Court's Decision in the Fair Housing Act Case, TDHCA V. ICP


Roisman, Florence Wagman, Poverty & Race


Courts and commentators will have much more to say about the significance of the U.S. Supreme Court's June 25, 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (TDHCA v. ICP). I believe it makes three enormously important contributions to the law and policy governing housing discrimination and segregation.

The three contributions regard residential racial segregation, disparate impact, and the Low Income Housing Tax Credit program. Although the case went to the Supreme Court as a challenge to disparate impact as a basis for liability and usually is discussed in that context, I think the ruling's implications for residential racial segregation are even more important, so I discuss those first.

1. Residential Racial Segregation

The opinion does three important things with respect to residential racial segregation: it identifies integration as a purpose of the Fair Housing Act (FHA); it indicts federal, state, and local governments for causing and exacerbating residential racial segregation; and it affirms the obligation to advance integration.

The Fair Housing Act does not use the words "integration" or "segregation." The legislative history, early Supreme Court decisions, and many opinions from the courts of appeals identify residential racial integration as a purpose of the statute, but there has not been a recent Supreme Court acknowledgment of this. This decision provides that acknowledgment and reaffirmation.

The Court underscores the contemporary significance of the Kerner Commission report, which "identified residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of . . . social unrest" and "found that both open and covert racial discrimination prevented black families from . . . moving to integrated communities." (Slip opinion 6.) The Commission recommended enactment of a fair housing act "[t]o reverse '[t]his deepening racial division' . . . ." (Sl. op. 6.) Congress enacted the FHA "to resolve the social unrest in the inner cities." (Sl. op. 7.) The Court concluded its opinion by writing of our "striving to achieve our 'historic commitment to creating an integrated society," admonishing (Sl. op. 24, emphasis added):

The FHA must play an important part in avoiding the Kerner Commission's grim prophecy that "[o]ur Nation is moving toward two societies, one black, one white- separate and unequal." . . . . The Court acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society.

The Court also acknowledges the role of federal, state, and local governments in creating this racial division. On this point, even the dissent agrees, citing "the country's shameful history of segregation and de jure housing discrimination . . . ." (Dissent of Justice Alito, Sl. op. 10.) The majority's review cites work by Michael Klarman, Kenneth Clark, and a group of Housing Scholars who filed a brief amici curiae in the case.

The Court says that the FHA makes unlawful "zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification." (Sl. op. 17.) Indeed, the Court states that "[s]uits targeting such practices reside at the heartland of disparate-impact liability" and cites three archetypal cases in which Huntington, NY, Black Jack, MO, and St. Bernard Parish, LA were held liable for such practices. (Sl. op. 17, emphasis added.) The Court says that the FHA enables litigants "to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment," to "stop . . . municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units," to "prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping." (Sl. …

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