Roger Clegg: Important Cert Grant This Week

The following is from Roger Clegg, president and general counsel of the Center for Equal Opportunity, and is posted with his permission.

Important Cert Grant This Week

The Supreme Court granted review this week in Magner v. Gallagher, which presents the question whether a “disparate impact” cause of action can be brought under the Fair Housing Act.  Many lower courts have recognized such lawsuits, alas, but the Supreme Court has never resolved the issue.  The Reagan administration urged the Court to reject this approach, but the Court, while recognizing the issue, ducked it in a case involving Huntington, New York, and then ducked it again more recently in a case against Cuyahoga Falls, Ohio.

The issue is especially important in this administration, since the Justice Department is ramping up its use of the disparate-impact approach in a number of areas, including housing-related matters.  In fact, civil-rights division head Thomas Perez gave a speech saying just that on, ironically, the day the case was granted.

The disparate-impact approach is fundamentally misguided, however. If an action does not consider race, does not use criteria that were chosen with racial results in mind, and is appled evenhandedly so that no one is treated differently on account of race — well, then, it’s not racial discrimination, which is what the statute forbids. Saying that there is a violation because a policy has a disproportionate racial result simply, and perversely, encourages the surreptitious consideration of race — or else the rejection of perfectly legitimate criteria. Neither result is fair.

And among those to whom it is unfair will be, ironically, members of the racial minorities on whose behalf such claims are made. Consider, to give one example, how challenging school discipline policies with a disparate impact will have the predictable result of less discipline in minority-dominant classrooms — and of course that means that the students suffering from the disruptions will be disproportionately minority. In the housing case at hand, the claim is brought by landlords who are unhappy that they are being forced to ensure there are no housing code violations. The landlords claim that such policies will increase costs for, especially, minority renters — but, of course, the victims of the housing code violations are also, disproportionately, minority renters.

It just doesn’t make sense to approach these matters as being about racial
discrimination when, by any sane definition of the term, they are not.

ADDENDUM

For more nitty-gritty on the legal issue here, see the appendix to Clegg’s congressional testimony. [NOTE: This link leads to a page on the CEO site, which in turn has a link to the testimony. For some reason I had trouble opening this link in my Safari browser, but Chrome and Firefox worked. Your mileage may vary.]

ADDENDUM II [16 November]

Roger Clegg adds the following:

One other point:  The recognition of a disparate-impact cause of action under the FHA would require mortgage eligibility determinations to avoid racial disproportionalities (see 42 USC 3605 of the FHA, which covers “residential real estate-related transactions,” including the “making or purchasing of loans … for purchasing … a dwelling … or secured by residential real estate” or “selling … residential real property”)  – and, of course, that’s the last thing we need, given the evidence that race-driven mortgage lending helped lead to the 2007-2008 meltdown.

ADDENDUM III [17 November]

Another update from Roger:

Yesterday the Department of Housing and Urban Development issued proposed regulations that would take a “disparate impact” approach in enforcing the Fair Housing Act.  This comes on the heels of the Supreme Court’s cert grant earlier this month (discussed above) in a case presenting the issue whether the Fair Housing Act contemplates such an approach at all.

Now, as also discussed above, the disparate-impact approach is bad law and bad policy.  But isn’t it also unseemly for the administration to be proposing regulations that presume an interpretation of the statute that the Court may well reject in a few months?

Yes. But why would anyone expect seemly regulations from an unseemly administration?