Civil-Rights Law Dodges a Bullet in Mount Holly

Late last week, there was a very rare piece of good news involving civil rights and the Roberts Court. The news was good because a crucial civil-rights case will no longer involve the Roberts Court. The township of Mount Holly, New Jersey settled a lawsuit brought under the Fair Housing Act (FHA), and in so doing thankfully deprived the five Republican appointees on the Supreme Court of another opportunity to take a meat axe to federal civil-rights protections.

The suit involved a plan by the township to "redevelop" Mount Holly Gardens, a low-income neighborhood with predominately African-American and Hispanic residents. As detailed by MSNBC's Adam Serwer, under the plan Mount Holly would "buy the aging homes, raze them and replace them with higher-end housing the residents couldn’t afford." Because of a variety of factors including the bursting of the real-estate bubble, much of the demolition went forward but the redevelopment didn't. Residents of Mount Holly Gardens brought suit under the Fair Housing Act, arguing that the plan was discriminatory.

As Serwer also observes, what made the case a potentially major civil-rights case is that the question of whether a "disparate impact" on racial minorities counts as racial discrimination. Broadly speaking, there are two standards that can be used to determine whether racial discrimination barred by a statute or constitutional provision has occurred. One standard requires proof that discrimination on part of a state official was intentional. Alternatively, proving discrimination requires showing that the policy produces a disparate impact. Not every policy or action that creates a disparate impact will be illegal under the latter standard, but generally if a disparate impact is shown, the burden of proof shifts to the state to show that the policy is necessary to acheive a neutral and important public objective.

The FHA is one area of federal law where the disparate-impact standard applied. Applying the relevant precedents, the 3rd Circuit Court of Appeals held that while the residents had not shown sufficient evidence of intentional discrimination, they had established a prima facie face of discrimination under the disparate-impact standard, therefore requiring the township to prove that there was no less discriminatory way of improving blight in Mount Holly Gardens. The evidence presented by the residents makes the holding difficult to argue with. As the court found, "According to the data in the 2000 census conducted before the redevelopment plan began, 22.54% of African-American house-holds and 32.31 % of Hispanic households in Mount Holly will be affected by the demolition of the Gardens. The same is true for only 2.73% of White households."

Conservatives in the judiciary, however, have generally rejected disparate-impact analysis in favor of a requirement that discriminatory intent be proven. The obvious problem with the intent standard is that in most cases it renders prohibitions on discrimination a nullity. Jim Crow and the Civil War amendments were able to coexist in large measure because while the Supreme Court even in its worst periods would strike down explicitly discriminatory laws the requirement to prove intent made it virtually impossible to prove that discrimination had occurred despite overwhelming empirical evidence. In practice, a narrow requirement to prove discriminatory intent gives state officials a license to discriminate so long as nobody is dumb enough to admit it in open court or in recorded public statements.

Alas, to a majority of the Roberts Court, that the disparate impact standard expands the effective reach of civil-rights law is a bug, not a feature. From its ludicrously unprincipled evisceration of the Voting Rights Act to its extremely narrow readings of the Civil Rights Act, the last Supreme Court term was a grim illustration of the Republican majority's fundamental hostility towards civil-rights law.

Had it taken the case, it was very unlikely that this case was going to be an exception. The Republican-appointed justices who are more moderate in some areas have generally been just as hostile to civil-rights enforcement as a Republican party-liner like Sam Alito. One of Anthony Kennedy's first major opinions as a Supreme Court justices was a an interpretation of the Civil Rights Act so contrary to the purpose of the legislation that it was effectively overruled by Congress two years later. Similarly, John Roberts's hostility to the Voting Rights Act goes back at least to his days serving in the Reagan administration.

It was almost certain, therefore, that the Court granted certiorari to reject the use of disparate impact to determine discrimination under the FHA. Recognizing as much, in late 2011 the Obama administration pressured the city of St. Paul to settle a suit that would have given the Court another opportunity to gut the FHA. For the same reasons, conservatives are lamenting Mount Holly's decision to settle.

Denying the Roberts Court the opportunity to revise the law in this field is the best outcome possible for the time being. Eliminating the disparate-impact standard is not only bad because it makes discrimination nearly impossible to prove. When evaluating the impact of the actions of public officials, the actual effects matter more than their subjective intent. Hopefully, before the next time the Supreme Court hears a FHA case the personnel changes will have produce a Supreme Court majority that supports the enforcement of civil rights.

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