Roger Clegg explains for National Review Online readers why U.S. Supreme Court watchers have more than one reason to take issue with the high court’s actions Thursday.
The Supreme Court today ruled 5–4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that “disparate impact” claims may be brought under the Fair Housing Act. The Court’s decision is, needless to say, disappointing. It fails to follow the clear language of the statute, and it will encourage race-based decision-making in the housing area — exactly what the Fair Housing Act was meant to prohibit. The only silver lining is that Justice Kennedy’s opinion itself recognizes this problem, and some of the language toward the end will be useful in stemming the worst abuses.
To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — on the basis not only of race, color, or national origin but also of religion, sex, or familial status (that is, having children) — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.
This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decision-making: again, just the opposite of what civil-rights laws are supposed to do.
