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The U. S. Supreme Court,
during its recently ended term, agreed to review the issue of whether the
discriminatory effect of a “facially neutral” policy violates the Fair
Housing Act. In a case called Cuyahoga Falls v Buckeye Community Hope
Foundation, a race-neutral policy, if followed, would most certainly
have a disproportionately negative effect on the housing possibilities of
the African- American homeseeker.
In this new millennium
there are still people or groups of people who make a deliberate decision
to discriminate based on their beliefs about certain groups of people. In
fact, fair housing laws were enacted to protect certain groups or classes
of people from being victims of other peoples’ biases. Most of us
recognize that conscious acts of discrimination or different treatment
based on race, color, religion, sex, disability, national origin or
familiar status clearly violate the Fair Housing Act. But what about the
effects of policies, rules and regulations that are not intended to
discriminate against anyone but disproportionately impact protected groups
of people; do they also violate the Fair Housing Act?
A discriminatory effect
or disparate impact case stems from what is referred to as a
facially neutral policy. This simply means that there was no intent
to discriminate built into the policy but the implementation of the policy
has a discriminatory effect on the members of one or more protected
classes.
Disparate impact cases
are based on statistical data that show to what extent, if implemented,
the neutral policy has impacted or would negatively impact a particular
class of people such as families with children or those belonging to a
minority group. This is precisely the question currently being asked of
the nation’s highest court. The Fair Housing Act does not indicate whether
intentional discrimination is the only type of discrimination the law was
enacted to address.
Case law has provided
some guidance. Much of the rationale for case decisions in housing
discrimination cases has been extracted from employment discrimination
cases. The Supreme Court, in an employment discrimination case, (Griggs
v Duke Power Co, 1971) concluded that the purpose of the equal
employment laws was “to achieve equality of employment opportunities and
remove barriers that have operated in the past.” Following the Supreme
Court’s lead, the lower federal courts have consistently applied the same
standard to housing discrimination cases and held that where the effect of
a facially neutral policy causes a disparate impact on the members of a
protected class the policy cannot stand. As a safeguard against housing
providers being treated unfairly, if a facially neutral policy or practice
has a disparate impact on a protected group or class, the housing provider
would be given the opportunity to show that the practice was necessary for
providing the housing service.
At the Federal Circuit
Court level there is a strong consensus among the circuits that the
disparate impact theory of discrimination in the context of housing is
appropriate. There are eleven circuit courts and none of them have
directly espoused the view that the discriminatory effect theory is an
inappropriate standard for fair housing cases. Nonetheless, there is
reason for concern that the Justices of this Supreme Court have agreed to
hear the Cuyahoga Falls case.
The last time the
Supreme Court visited this issue was in 1988 in the Town of Huntington
vs. NAACP case. The make up of that court was slightly more
liberal than the present Supreme Court. Even though the Reagan
administration filed a brief urging the Court to rule against the
disparate impact approach as a theory of discrimination in housing cases,
the Court was reluctant to do so. Rather than choosing to eliminate the
standard altogether, the court preferred to “reserve” or put aside the
issue for review at a later date.
Since that time, with
the Reagan and Bush appointees, the Court has become more conservative.
In addition to the more conservative Court, it is very likely that the
current Bush administration will follow the lead of both the Reagan and
former Bush administrations and file briefs in favor of eliminating the
standard.
This issue is one that
can greatly impact the way the Fair Housing Act is enforced and fair
housing groups across the country will be watching it closely.
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