The Roberts Court, once again, is considering whether to scale back critical, long-established protections for racial equality.   As we saw last year in Shelby County v. Holder and Fisher v. University of Texas, this is an area where the Court’s conservatives are looking to change the law, granting review even where there is no conflict in the lower courts.  This Term’s big, upcoming civil rights case is Mt.  Holly v. Mt. Holly Garden Citizens in Action, which raises the question whether minority residents may bring a claim under the Fair Housing Act of 1968 to challenge practices and policies that have an unjustified disparate impact on their ability to enjoy equal housing opportunity. 

For decades, disparate impact liability has been a critical tool to ensuring that the Constitution’s promise of equality extends to all persons regardless of race.  First recognized by the Supreme Court in 1971, the ability to bring suit to challenge laws that have an unjustified disparate impact on minority groups has been recognized under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Voting Rights Act.  Eleven federal courts of appeals have held that, under these precedents, disparate impact liability is available under the Fair Housing Act to redress housing discrimination; none have reached a contrary conclusion.  As these courts have recognized, the Fair Housing Act, like Title VII and other historic civil rights statutes, focus on eliminating barriers to equal opportunity, including those fair in form, but discriminatory in result. 

Efforts by local governments to address blight often have imposed unjustified disparate impacts on minority communities, and the facts of Mount Holly’s case are a good example of why disparate impact is so important.  In 2003, Mount Holly Township proposed to demolish all of the homes in the Gardens, the township’s only predominantly African-American and Hispanic neighborhood, and to develop in its place a community of significantly more expensive housing units.   Under the redevelopment plan, minority residents of the Gardens – many of whom had lived there for many years, had paid off their mortgages, and planned to pass their homes to their children – will lose their homes and will likely be relocated away from their neighborhood. If disparate impact analysis applies, the township will have to justify this discriminatory impact.

In its appeal to the Supreme Court, Mount Holly has argued that the Fair Housing Act does not permit minority residents the opportunity to challenge practices and policies that are neutral in form, but discriminatory in operation.  Going even further, Mount Holly argues that disparate impact liability is a form of racial discrimination against white residents that raises serious constitutional questions under the Equal Protection Clause.  Espousing a radical view of the Fourteenth Amendment that has never been the law, the township suggests that the Fair Housing Act would be unconstitutional if it prohibited both intentional and unintentional forms of racial discrimination.   Mount Holly’s argument, which, if accepted, would cripple disparate impact liability as a remedy, cannot be squared with the Constitution’s text and history.

As CAC’s brief in Mount Holly shows, the text and history of the Fourteenth Amendment establishes what the Supreme Court’s cases have long affirmed: Congress has the authority to prohibit laws and practices that result in racial discrimination in order to realize the Fourteenth Amendment’s guarantee of equality.  Indeed, contemporaneous with the passage of the Fourteenth Amendment, the Reconstruction-era Congress enacted measures that, like today’s disparate impact provisions, protected against practices—fair in form but discriminatory in result—that would have operated to deny African Americans important rights and benefits.  The very first civil rights laws enacted by the Reconstruction Congress targeted not only explicit racial classifications, but neutrally-worded, generally applicable laws that were used to deny basic civil rights to the newly freed slaves.   The Framers’ overriding concern was to ensure the Constitution’s promise of equality was actually enjoyed by all persons regardless of race.  Mount Holly’s argument that any consideration of race, even mere consideration of race by the government to ensure that its act do not lead to racial discrimination, depends on willful blindness to the basic facts of Fourteenth Amendment history.    

Oral argument in Mt. Holly is scheduled for December 4, 2013.  We hope the Justices permit the Fair Housing Act claims of minority residents of Mt. Holly Gardens to go forward and recognize, consistent with the Constitution’s text and history, that redressing unjustified disparate impacts on racial minorities by the government is both consistent with, and necessary to, fulfilling the promise of equality contained in the Fourteenth Amendment.