Brief Filed with Supreme Court in Mt. Holly Case Says Implicit Bias a Major Cause of Housing Discrimination

amicusUPDATE (JUNE 2014): An article by the Equal Justice Society and attorneys from Wilson Sonsini Goodrich & Rosati is in the latest edition of the Hastings Race & Poverty Law Journal. The article, “Lessons from Mt. Holly: Leading Scholars Demonstrate Need for Disparate Impact Standard to Combat Implicit Bias,” is based on the amicus brief filed by attorneys from EJS and Wilson Sonsini in the case of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., on behalf of 23 sociologists, social and organizational scientists, and legal scholars. We thank the journal’s editor-in-chief, Pedro Hernandez, for including an article from us and on the completion of his law school odyssey at Hastings! Order your copy of the journal.

Social scientists and legal scholars filed an amicus brief with the U.S. Supreme Court in a case that tests whether or not a long-standing federal law, the Fair Housing Act (FHA), can continue being used as a tool for ending housing discrimination and promoting more inclusive neighborhoods.

The social science research in the brief demonstrates that housing discrimination continues today, in part because implicit and unconscious biases play a role in a wide range of housing-related decisions. Because many of these decisions are not intentional, the social scientists argue that the FHA’s disparate impact standard is necessary to address these biases and the intent standard will allow inequality to continue.

The brief (PDF) was filed by attorneys from the Equal Justice Society and Wilson Sonsini Goodrich & Rosati in the case of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. on behalf of 23 sociologists, social and organizational scientists, and legal scholars from institutions such as MIT Sloan School of Management, Princeton University, Stanford University, Columbia Business School at Columbia University, and University of California, Berkeley.

Implicit racial bias skews perceptions of people of color in neighborhoods. These biased perceptions affect decision-making – in municipal land use, displacement, redevelopment, and rehabilitation, and in housing sales and rentals – leading to significant harm to minority residents and homeseekers.

Housing policy decisions tainted by implicit bias are part of the problem considered in Mt. Holly, brought by the residents of Mt. Holly, New Jersey, against the township, which plans to demolish all of the existing homes in one of the only neighborhoods predominantly occupied by African Americans and Latinos.  The town intends to replace those homes with more expensive housing that the neighborhood’s current homeowners and renters cannot afford.

The township claims that the Fair Housing Act only prohibits actions proven to be intentionally motivated by racial discrimination.  The U.S. Court of Appeals for the Third Circuit disagreed, saying that the Mt. Holly residents should be allowed to continue their lawsuit.

The social scientists’ brief by EJS and Wilson Sonsini Goodrich & Rosati says that the Supreme Court should affirm the Third Circuit’s decision because the disparate impact standard is essential for courts to conduct the searching inquiry necessary to fully combat housing discrimination and comply with the Fair Housing Act’s crucial objective of ending housing segregation. EJS President Eva Paterson and Legal Director Allison Elgart joined David Berger, Savith Iyengar, Jason Gumer, Jasmine Owens, and Ro Khanna from Wilson Sonsini Goodrich & Rosati as counsel on the brief. EJS law clerk Braz Shabrell was also instrumental in crafting the brief.

Housing segregation is still a fact of life in the United States. Americans of all races continue to experience high rates of racial isolation. While Whites, Blacks, and Latinos represent 64 percent, 13 percent, and 16 percent of the general population, respectively, the average White resident now lives in a census tract that is 79 percent White, the average Black resident lives in a tract that is 46 percent Black, and the average Latino resident lives in a tract that is 45 percent Latino.

Social science research reveals the pervasive and harmful effects of implicit biases in housing. Recent social science research shows that implicit biases manifest in perceptions of disorder, criminality, and blight. In housing and land use planning, these psychological perceptions inform government and individual actions and ultimately harm minority communities.

Implicit biases affect decision-making due to subconscious perceptions of minorities as less desirable residents. These biases influence negative “race-space associations” – perceptions of a space based on the race of those who occupy it – and result in detrimental treatment in housing transactions based on individuals’ racial perceptions and stereotyping. These were among the findings cited in a study by two researchers at the University of California, Berkeley: Dr. Victoria C. Plaut, Professor of Law and Social Science and Affiliated Psychology Faculty, and Michelle Wilde Anderson, an Assistant Professor of Law.

The brief also references studies showing that individuals perceive disorder in otherwise identical neighborhoods solely due to the presence of minority groups. Research shows that, even independent of actual visual signs of disorder, the racial composition of a neighborhood signals to perceivers what level of disorder is present in that neighborhood.

Researchers Courtney M. Bonam, Jennifer L. Eberhardt, and Hilary B. Bergsieker found that this strong association of racial minorities with neighborhoods “with crime, disorder, neglect, and poverty” causes individuals’ perceptions of disorder to increase as the Black population increases.

Studies show that for many, simply seeing Black (as opposed to White) residents in identical neighborhoods elicits more negative evaluations of the neighborhood’s conditions. Such perceptions are bolstered by a false sense of legitimacy. Researcher Maria Krysan found that “the more subtle nature of the race-associated reasons makes them more insidious because they appear to be ‘rational’ and not susceptible to the charge of racism.”

It is therefore critical that courts have some mechanism to combat mistaken perceptions rooted in implicit bias.

Courts Need the Disparate Impact Standard to Address All Forms of Discrimination, Including Implicit Bias. Social science research demonstrates that in order to truly address implicit bias – and thus all forms of discrimination in housing, as Congress intended – courts must be able to apply disparate impact analysis.

An article by Anthony G. Greenwald and Linda Hamilton Krieger, “Implicit Bias: Scientific Foundations,” found that in situations involving race, measuring implicit bias is even more valuable than measuring explicit bias. In fact, recent social science research confirms that implicit biases appear to be supplanting explicit racism.

The disparate impact standard gives courts a tool to ferret out potential discrimination where a protected group is “disproportionately burdened” by municipal action. It also allows courts to conduct a proper analysis of legitimate bases for displacement or removal where municipal decision-makers might have been improperly influenced by implicit bias.

In the Mt. Holly case, the disparate impact standard is crucial to begin the discussion of whether implicit bias tainted the Township’s decision based on the appearance of rather than a proper evaluation of blight, or the projected increase in property value coming from replacing the mostly minority community with homes at price points they cannot afford.

Without the disparate impact standard to reveal potential implicit biases, reviewing courts would allow these biases to continue to influence decision-making in a way that could also increase racial animus. By providing a way to account for implicit biases resulting in disproportionate impact of municipalities’ decisions on minority communities, the disparate impact standard works to combat all forms of discrimination and provides a means to eliminate those implicit biases in future generations.

Given the goal of the FHA to eradicate the harms caused by segregation, the role implicit biases play in perpetuating this segregation, and the clear benefits of integrated and diverse communities in combating implicit bias, the Court must interpret the FHA to include the disparate impact standard.

The amici for the brief include the following sociologists, social and organizational scientists, and legal scholars:

  • Michelle Wilde Anderson, Assistant Professor of Law at University of California, Berkeley
  • Dr. Evan Apfelbaum, social psychologist and Assistant Professor of Organization Studies at MIT Sloan School of Management
  • Dr. Laura Babbitt, social psychologist and postdoctoral scholar at Tufts University
  • Dr. Michael Bader, Assistant Professor of Sociology at American University
  • Dr. Hilary B. Bergsieker, Assistant Professor of Psychology at the University of Waterloo
  • Dr. Jim Blascovich, Professor of Psychology at the University of California, Santa Barbara, and Co-Director of the Research Center for Virtual Environments and Behavior
  • Dr. Courtney Bonam, Assistant Professor of Psychology at the University of Illinois, Chicago, and a research affiliate of the Institute for Sustainable Economic, Educational and Environmental Design
  • Dr. Camille Zubrinsky Charles, the Edmund J. and Louise W. Kahn Term Professor in Social Sciences at the University of Pennsylvania; Director of the Center for Africana Studies at the University of Pennsylvania
  • Dr. Kyle Crowder, Professor of Sociology at the University of Washington
  • Dr. Nilanjana Dasgupta, Professor of Psychology at the University of Massachusetts at Amherst
  • Dr. Jennifer L. Eberhardt, Associate Professor of Psychology at Stanford University and the Co-Director of SPARQ (Social Psychological Answers to Real-World Questions)
  • Dr. Reynolds Farley, Research Professor Emeritus at the Population Studies Center and a Professor Emeritus of Sociology at the University of Michigan
  • Dr. Maria Krysan, Professor in the Department of Sociology and the Institute of Government and Public Affairs at the University of Illinois, Chicago
  • Dr. Douglas S. Massey, the Henry G. Bryant Professor of Sociology and Public Affairs at Princeton University, and President of the American Academy of Political and Social Science
  • Dr. Rodolfo Mendoza-Denton, Associate Professor of Psychology at the University of California, Berkeley
  • Dr. Elizabeth Page-Gould, Assistant Professor of Psychology at the University of Toronto
  • Dr. Thomas Pettigrew, Professor Emeritus of Social Psychology at the University of California, Santa Cruz
  • Dr. Victoria C. Plaut, Professor of Law and Social Science and Affiliated Psychology Faculty at the University of California, Berkeley
  • Dr. Katherine W. Phillips, the Paul Calello Professor of Leadership and Ethics in the Management Division at Columbia Business School at Columbia University
  • Dr. Lincoln Quillian, Professor of Sociology at Northwestern University and a faculty fellow at Northwestern’s Institute for Policy Research
  • Dr. Jennifer Richeson, the MacArthur Foundation Chair and a Professor of Psychology and African American Studies at Northwestern University
  • Dr. Samuel R. Sommers, Associate Professor of Psychology at Tufts University
  • Dr. Linda R. Tropp, Professor of Psychology at the University of Massachusetts at Amherst

About the Equal Justice Society. EJS is a national legal organization focused on restoring constitutional safeguards against discrimination. Our legal strategy aims to broaden conceptions of present-day discrimination to include unconscious and structural bias by using cognitive science, structural analysis, and real-life experience.  Currently, EJS targets its advocacy efforts on school discipline, special education, and the school-to-prison pipeline, local service and municipal disparities, and inequities in the criminal justice system.

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