For people who’ve watched the Roberts Court whittle away civil rights legislation over the last decade, the new Supreme Court term brings with it the likely possibility of more of the same. The High Court is set to consider Alabama’s so-called “racial gerrymandering” and Texas’ low-income housing practices this term. In the former, it has the opportunity to take further swipes at the Voting Rights Act, and in the latter, eviscerate the cornerstone enforcement provision of the Fair Housing Act. Civil rights watchers and fair housing advocates in particular are bracing for the worst.
Here’s a racial justice primer on what to expect this term in these two key cases.
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project concerns “disparate impact,” a legal concept that’s been wielded since the 1970s to fight housing and other kinds of institutionalized racial discrimination. The legal concept says that plaintiffs alleging housing discrimination do not need to know the motivations and intent of decision makers and institutions–like banks, housing authorities and municipalities–as long as they can show that their actions have a racially disparate impact that discriminates against people of color. In other words, it’s a civil rights legislation for a post-Civil Rights Era, when blatant redlining no longer occurs, but banks still saw fit to steer wealthy blacks and Latinos toward subprime loans at more than double the rate they did similarly situated wealthy whites.
You won’t actually find the words “disparate impact” anywhere in the text of the Fair Housing Act, but the concept, borrowed from Title VII of the Civil Rights Act, has been recognized with “unanimity” by the courts, says Rigel Oliveri, a professor at the University of Missouri School of Law. The Department of Justice used disparate impact to win its historic settlements against subprime lenders Wells Fargo and the now-defunct Countrywide in the wake of the housing crisis. Disparate impact is, unsurprisingly, not popular with banks and other business interests.
“Disparate impact doesn’t mean you win your case,” Oliveri says. “It just means you get your foot in the door and the burden of proof shifts to the other side to explain why they needed to pass a facially neutral law that ended up having a disparate, discriminatory impact on a group of people.” And that reason better be non-racial and justifiable.
The particular case is the Supreme Court’s third attempt in three years to hear such a challenge to disparate impact. Texas was approving developer tax credits for subsidized low-income housing in Dallas, low-income housing advocates allege, but predominantly in low-income neighborhoods concentrated with people of color while denying those tax credits for projects in whiter, more affluent neighborhoods. This kind of practice has aggravated racial segregation in the city, plaintiffs argued. Lower courts ruled that The Inclusive Communities Project, the low-income housing group, was able to prove discrimination via disparate impact. In its appeal, Texas isn’t interested in rehashing the facts of the case and instead is seeking to cut off the disparate impact standard altogether.
The Supreme Court, which has seen fit to strike down school integration efforts in Seattle in 2007, gut the Voting Rights Act in Shelby County v. Holder, and clear the way for state affirmative action bans in Schuette v. Coalition to Defend Affirmative Action in 2013, is particularly hostile to the consideration of race, even if the policy in question is meant to protect people of color from disenfranchisement and discrimination. In Chief Justice John Roberts’ famous words, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It’s that positioning that has many civil rights and fair housing watchers anxious, says Oliveri.
On November 13, the Supreme Court will hear oral arguments in a case challenging Alabama’s redistricting efforts in a pair of linked cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. State Democrats and black lawmakers say that in 2012, the Republican-controlled state legislature redrew legislative maps to consolidate black voters into just a few districts, creating districts of super-majorities while diluting their voting power elsewhere. One newly redrawn House district went from 67 percent black to 76.8 percent black. Senate District 26 went from 72.75 percent black to 75.22 percent black, resulting in a “strangely shaped configuration that resembles a downward-facing sand fiddler crab,” plaintiffs wrote in their brief.
Plaintiffs called the practice “racial gerrymandering,” or in other words, an unconstitutional and unjustified use of race in redistricting that violates the Equal Protection Clause and the Voting Rights Act. Indeed, says Loyola Law School professor Justin Levitt, “The Voting Rights Act, as courts have interpreted it in the past, [with] the [now-invalidated] Section 5 and other sections, have required a lot more nuance.” The question before the court is: Was the state “appropriately nuanced or inappropriately blunt in how it used race in the process?” says Levitt.
In 2012, a three-judge panel of Federal District Court judges ruled the plan did not deny black voters their right to participate in the political process, and was neither unconstitutional nor a violation of the Voting Rights Act–but with one key dissent. Judge Myron H. Thompson, who is African-American, pointed out “a cruel irony” to these cases. “Even as it was asking the Supreme Court to strike down” Section 5 of the Voting Rights Act “for failure to speak to current conditions,” Thompson wrote in his dissent, “the State of Alabama was relying on racial quotas with absolutely no evidence that they had anything to do with current conditions, and seeking to justify those quotas with the very provision it was helping to render inert.”
Consider this year’s Alabama redistricting case “Shelby County, number two,” says Victor Goode, a professor at the CUNY School of Law. Shelby County v. Holder, the Supreme Court’s landmark ruling that invalidated the Voting Rights Act’s pre-clearance formula, paved the way for voter suppression efforts and “has given rise to all these voter ID laws bouncing around the courts now,” Goode says.
Justices Clarence Thomas and Antonin Scalia in particular “have been arguing all along that the Voting Rights Act is an anachronism of history,” says Goode. “If they continue that same approach, they just might take another few bites out of the Voting Rights Act.”