The U.S. Supreme Court on Wednesday took up a case about lawsuits over racially discriminatory effects in housing, an issue that has important implications for education in two distinct ways.
The issue before the justices is whether plaintiffs may bring so-called disparate-impact claims under the federal Fair Housing Act of 1968 over alleged discriminatory effects in federally funded low-income housing projects.
Several civil rights groups filed briefs stressing the link between housing opportunities and racial diversity in schools, arguing that the unavailability of disparate-impact claims would worsen racial isolation in the nation’s classrooms.
The second way the Supreme Court’s ruling could affect schools is by potentially limiting the power claimed by the U.S. Department of Education to sue over racially disparate effects in schools.
The state of Texas, which is fighting a disparate-impact housing claim in the case before the justices, cites in its brief a “dear colleague” letter from the U.S Department of Education’s assistant secretary for civil rights in October, claiming authority under the Civil Rights Act of 1964 to enforce against, as the letter put it, “facially neutral policies that are not intended to discriminate based on race, color, or national origin, but do have an unjustified, adverse disparate impact on students based on race, color, or national origin.”
The department’s letter is an example of a federal agency seeking “to impose disparate-impact regimes based on statutes that have been held by this court to extend only to intentional discrimination,” the state said in its brief.
In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. (Case No. 13-1371), the high court is weighing whether a Dallas organization may press its claim that the state housing agency disproportionately allocated federal housing tax credits for projects in minority-populated areas.
The Inclusive Communities Project favored spreading the projects around to wealthier neighborhoods around Dallas so that racial integration would improve in those areas.
A federal district court found that the suit failed to prove intentional discrimination by the Texas agency, but that the agency’s actions had racially discriminatory effects. The U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled that such disparate-impact claims may be brought under the Fair Housing Act.
The Supreme Court accepted the state’s appeal of that decision. The justices have been seeking to address the question for several years, but two previous cases that raised the issue were settled after the high court granted review. The conventional wisdom is that the court’s conservatives are seeking one more opportunity to rein in government consideration of race.
Several friend-of-the-court briefs in the case address housing and education issues.
“Racial isolation in schools is directly connected to racial isolation in housing patterns,” says a brief filed on the side of Inclusive Communities Project by several former U.S. Department of Justice civil rights officials. “The decisions state and local governments make with respect to housing thus can mitigate—or exacerbate—the status quo of racial isolation in neighborhoods and schools.”
The NAACP Legal Defense and Educational Fund, in a brief arguing for the availability of disparate-impact claims, said, “Long-term residential segregation has grave consequences for the lives and livelihoods of millions of African Americans. Individuals who reside in neighborhoods characterized by entrenched housing segregation face dimmer economic prospects, lower property values, truncated social and professional interactions, and inferior schools.”
And a brief from the Lawyers Committee for Civil Rights Under Law cites dozens of scholarly studies and papers documenting the links between housing and school desegregation.
“Social science research confirms that school segregation is tethered to residential segregation because of the prevalence of neighborhood schools in the public school system,” says the brief, which is also on the side of the Inclusive Communities Project.
“The [Fair Housing] Act’s goal of achieving integrated living patterns would be significantly impaired if its scope were limited to an inquiry into intentionally discriminatory conduct,” the brief says.
Meanwhile, Texas and its allies warn that Supreme Court endorsement of disparate-impact claims under the housing law would embolden other agencies to expand such inquiries.
“Disparate impact liability is a growth industry,” says a friend-of-the-court brief filed by two conservative members of the U.S. Civil Rights Commission, Gail Heriot and Peter Kirsanow.
Texas argues that the Oct. 1 “dear colleague” letter from Catherine E. Lhamon, the Education Department’s assistant secretary for civil rights, would expose virtually any school district policy or practice to disparate-impact liability.
“School disciplinary policies, requirements for graduation, standards for admission into gifted-and-talented programs, and reliance on property taxes to fund public education will all result in racial ‘disparate impact,’” Texas argues.
President Obama’s administration, which supports the availability of disparate-impact claims in housing, did not address Texas’s criticism of the Education Department letter on disparate impact in its brief.
Oral arguments in the case on Wednesday only briefly touched on some of the education issues. A decision in the case is expected by the end of June.
A version of this news article first appeared in The School Law Blog.