EJS Applauds SCOTUS Fair Housing Decision Citing Implicit Bias

The Equal Justice Society applauds the U.S. Supreme Court’s ruling today in Texas Department of Housing v. The Inclusive Communities Project confirming the continued importance of disparate impact as a tool for addressing housing discrimination under the Fair Housing Act.

In this decision, the Supreme Court reaffirmed 45 years of legal precedent, including eleven appellate court rulings. The decision strengthens the bipartisan commitment made in 1968, and again in 1988, to ensure Americans are protected from housing discrimination.

The Court also cited implicit bias as a reason to keep the “disparate impact” standard in the Fair Housing Act:

“Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.” – Slip op at 21

In July 2014, EJS President Eva Paterson spoke on implicit bias and the 14th Amendment to the attendees at the Ninth Circuit Judicial Conference. Supreme Court Justice Anthony Kennedy was in the audience and heard EJS’s analysis of the connection between implicit bias and the disparate impact standard.

“EJS will use this decision as we move forward in our effort to dismantle the intent standard as it applies to the protections of the Equal Protection Clause of the 14th Amendment. We now have legal precedent for our argument.” said Paterson. “After a week of tears and rage, we find some solace in the ruling in this case.”

“The events of Charleston have reminded us that explicit bias and White supremacy are alive in our country. Despite this horror, we know that most Americans do not want to be racist. We all know that racial discrimination persists. Social scientists have demonstrated that unconscious feelings or ‘disguised animus’ are responsible for many biased decisions. Welcome to 21st century racism.”

EJS also submitted an amicus brief in the case with the Supreme Court on behalf of social scientists. Other counsel for amici included the Western Center on Law and Poverty, Legal Services of Northern California, Wilson Sonsini Goodrich & Rosati, PC, and Rachel Godsil of Seton Hall Univ. School of Law.

“We were proud to represent sociologists, social psychologists, and legal scholars who study the effects of implicit bias on individual behavior and institutional practices and to use their research to explain the role of implicit bias, implicit associations, and stereotyping in present-day discrimination in housing decisions,” said EJS Legal Director Allison Elgart. “We follow the spirit and groundbreaking work of the social scientists in Brown v. Bd. of Ed. in bringing these social science phenomena into the law.”

Our brief cited social science research in urging the court to maintain the disparate impact standard, or risk people suffering harms stemming from biases by government officials and housing developers.

The Inclusive Communities Project (ICP) case was brought by a nonprofit that assists low-income, predominately African American families eligible for the Dallas Housing Authority’s Section 8 Housing Choice Voucher program in finding affordable housing in mostly white suburban neighborhoods.

For reasons similar to those in the Mt. Holly case, this ICP case was critical because it provided the Court with an opportunity to review an important section of the Fair Housing Act (FHA), the leading law that protects against housing discrimination in this country.

Specifically, the case implicated the disparate impact standard under the FHA, which allows a plaintiff to bring a claim based on the disproportionate harmful effect of a governmental or private action, regardless of the motive behind that action.

EJS has long fought for the elimination of the intent standard in constitutional litigation. The disparate impact standard has helped eliminate subtle forms of discrimination that persist in different parts of the housing market, including mortgage lending, homeowners’ insurance, and local zoning and redevelopment decisions.

Now that the Court has reaffirmed this vital principle, it’s time to fully implement it throughout the nation. Housing providers, cities, towns, and communities around the country must protect housing choice, free from discrimination.

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