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Partcipants of a fair housing protest that took place in Seattle in 1964. The Fair Housing Act was signed by LBJ just four years later, in 1968, in the wake of Martin Luther King Jr.'s assassination. Now, advocates worry the law is under threat. (Archive photo: Wikimedia Commons)

After SCOTUS Gutted Voting Rights Act, Is Fair Housing Act Next?

Civil rights groups worry that landmark legislation designed to insulate housing from discrimination could be under threat from a new round of judicial overreach

Jon Queally

Civil rights groups and anti-poverty advocates are raising serious concerns after the U.S. Supreme Court hear orals arguments in case challenging the federal Fair Housing Act on Wednesday. The ultimate ruling in the case could have profound implications for those who benefit from the landmark legislation signed into law by President Lyndon Johnson in 1968, just days after the assassination of civil rights leader Martin Luther King, Jr..

On Wednesday the court heard oral arguments in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, which challenges a key aspect of the Fair Housing Act known as the "disparate impact." 

In a blog post offering historical and legal context for the FHA and the case before the court, director of the NAACP's Legal Defense Fund Leslie Proll explained: 

The lawsuit raises a “disparate impact” claim under the Fair Housing Act.  Essentially, this standard prohibits policies that appear neutral but unfairly exclude classes of persons in practice.   It allows us to recognize and prevent harmful and inequitable policies so that everyone is treated fairly.  The standard has been used to root out discriminatory policies not only in housing, but in employment, education, voting and environmental justice.  As our Supreme Court amicus brief notes, “housing segregation imposes a wide array of socioeconomic harms that can only be fully eliminated through a framework that includes a disparate impact standard.”

What's been seen as most striking about the case so far, however, is the fact that the nation's top court took the case at all. 

As Pro Publica reports:

The nation’s highest court does not typically intervene in cases unless there’s been disagreement in the lower courts. But this court has been determined to have its say on the housing issue and the legal theory that has come to be known as “disparate impact.” The Texas case marks the third effort in as many years by the current justices to consider the intent and reach of the housing act. The other two cases were withdrawn or settled in deals reached before oral arguments, as fair housing advocates feared they would lose before the Roberts Court.

“It is unusual for the Court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row,” said Ian Haney López, a University of California, Berkeley law professor.

As was done in the case of the Voting Rights Act in 2013, critics of the Supreme Court's decision to take up the suit are speculating, as MSNBC's Rachel Maddow reported during a segment on the issue on Wednesday, "that the Robert's went out of their way to take this case specifically so they can gut the Fairing House Act."

In addition to the NAACP, other civil rights groups are warning that a dismantling of the law by the Supreme Court would have devastating impacts.

“The Fair Housing Act is one of our nation’s bedrock civil rights laws and any rollback to its protections would be disastrous for our nation’s neighborhoods and communities," said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, in a statement released following oral arguments.

"It defies logic for the Court to take a case challenging a central component of the Fair Housing Act, given the law’s transformative power over generations and the widespread bipartisan consensus that passed it in 1968, expanded it in 1988, and validated it in 11 federal circuit courts," Henderson continued. "With residential segregation on the rise, a strong Fair Housing Act is as important now as it has been in the past. Robust and effective fair housing laws are a vital tool for ensuring equal opportunity. That’s why the Court should reject any attempt to weaken vital housing protections for families and communities."

Dennis Parker, director of the ACLU's Racial Justice Program, said the Fair Housing Act remains essential in combating ongoing discrimination found throughout the nation's housing and lending market.

"A bipartisan Congress passed this law because it recognized that housing discrimination and segregation were scourges upon this country," Parker said. "Effects of this discrimination are still acutely felt in communities across America. The problem has not been eradicated and we continue to need all the tools to fight it."


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