Supreme Court Skeptical Of Tight Limits On Fair Housing Act

A long-awaited argument brought surprising questions from Justice Antonin Scalia.

WASHINGTON — After a rocky start that included seven protesters interrupting Supreme Court proceedings Wednesday morning, several justices appeared skeptical of arguments to limit the scope of claims that can be brought under the Fair Housing Act.

The case finally brought the question of whether policies that are not discriminatory on their face but have a "disparate impact" on a particular race can be brought under the civil rights law — a question the court has tried to hear arguments on twice previously, only to see the cases settle prior to arguments.

While the Fair Housing Act of 1968 makes no specific mention of whether "disparate impact" claims are covered by the law, every court of appeals to decide the issue and the federal government — through the Department of Housing and Urban Development — agree that such claims are permitted under the act.

The strongest argument for allowing such claims, it appeared from the arguments on Wednesday, is the fact that when Congress amended the law in 1988, it included three exemptions for particular types of disparate impact claims. As such, several justices argued, the exemptions would have been unnecessary unless disparate impact claims, more generally, are allowed under the overall law.

Some of the sharpest questions posed to Texas Solicitor General Scott Keller, opposing the use of disparate impact claims, came from an unexpected corner: Justice Antonin Scalia.

Of the 1988 amendments, Scalia asked, "Why doesn't that kill your case?"

When Keller pushed back against that and similar questions from Justices Ruth Bader Ginsburg and Sonia Sotomayor — with some help from Justice Samuel Alito — by saying the question came down to whether the 1968 law itself initially allowed disparate impact claims, Scalia was incredulous.

Regarding the "plain text" of the law, Scalia told Keller the 1988 amendments must be considered, saying, "You look at the whole law ... We don't just look at each little piece."

In addition to Sotomayor and Ginsburg, Justices Stephen Breyer and Elena Kagan appeared to be supportive of a reading of the law that would allow for such disparate impact claims.

When the lawyer for the group challenging Texas' policy made his case, much of the discussion focused on how this specific case would be resolved — a question about what Sotomayor referred to as the "steps" in disparate impact litigation. In such litigation, first an initial case must be made that the policy has an adverse effect on a race. Once that happens, then legitimate reasons for the policy must be shown, and, if such reasons are shown, then it is determined whether there are alternatives available that would not have the same effects.

Notably, despite the discussion over those "steps," the Supreme Court declined to include debate over those steps in the "questions presented," or the formal court announcement of what issue it is considering. Instead, the court limited the question to whether disparate impact claims are allowed under the Fair Housing Act.

When the attorney representing the Obama administration, Solicitor General Donald Verrilli, made the federal government's case, he notably refocused the argument on that question. Repeatedly, Verrilli noted that there might not, ultimately, be a violation of the Fair Housing Act in this case. Instead, he said that issue could be resolved by lower courts and the majority of the disparate impact cases — "heartland" cases, which he described as involving occupancy requirements or policies limiting property use — could be allowed to continue.

In concluding his arguments, however, Texas' lawyer, Keller, raised a secondary question beyond the issue of whether the Fair Housing Act allowed for such claims, saying that there was "constitutional doubt" about whether disparate impact claims could ever be allowed under recent Supreme Court cases. This is so, Keller argued, because it would require entities to give "race-conscious consideration" in attempting to avoid FHA-related litigation. The constitutionality of such claims was not before the justices; however, the state raised the question as a reason to more narrowly interpret the act in order to avoid that constitutional question.

Sotomayor — who earlier noted that she has "studied" disparate impact law "very carefully" — countered that the possibility of disparate impact claims does not require race-conscious considerations so much as it requires people to think about the policy or program that would have "the most race-neutral" effects.

The court is expected to decide the case by late June.

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