The Roberts court takes on the Fair Housing Act
Mojo reports,
The question before the court is whether the Fair Housing Act of 1968, intended to fight pervasive residential segregation, bans practices that unintentionally discriminate against minorities.
And there's the rub.
"Unintentional discrimination" is an oxymoron.
Under the FHA, it is illegal to "refuse to sell or rent… to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
Civil rights advocates believe this language is broad enough to include disparate-impact claims, and the courts have historically agreed.
Some courts, not "the" courts; and it is evident there is nothing in the quoted text to support so violent an act of "interpretation."
Lower courts just play follow the leader, anyway, like so many lemmings trying their best not to poke their heads up.
This is the background of the current controversy.
The Texas case involves a fair-housing advocacy group that alleged state officials were perpetuating racial segregation in the Dallas region by making federal low-income housing vouchers available primarily in minority neighborhoods.
A district court agreed that state officials were violating the FHA—whether intentionally or not.
Texas appealed, urging the courts to find that the law only applies to intentional discrimination.
"The text of the Fair Housing Act unambiguously precludes the 'disparate impact' interpretation adopted by HUD and the court of appeals," the brief from the state says.
"There is no language anywhere in the Fair Housing Act’s anti-discrimination rules that refers to ‘effects’ or actions that ‘adversely affect’ others."
The Texans are clearly right.
The idea seems to have been that by providing aid only for purchases in minority neighborhoods the Texas law made it easier for minorities to locate in minority neighborhoods than elsewhere, thus perpetuating residential segregation.
That may be right, and I think it's a fair supposition that it was intentional.
Two points.
First, state officials do not seem to have been renting or selling or etc. They were providing assistance to housing-seekers. The law does not seem to address or constrain people or agencies doing that. So the law does not seem to apply in the case at issue.
Second, suppose they could prove an intention to perpetuate residential segregation. That does not seem to be forbidden by the quoted portion of this law. Again, the law does not seem to apply in the case at issue.
It appears to be the liberal view that, regardless of the actual text, (a) the law should be taken as forbidding any policy, rule, law, regulation, or other act in any way related to housing that has a "disparate impact" on different racial groups, (b) whether by intention or not.
It is not only right wing prosecutors or fascist cops out to nail their man who so grossly abuse the law.
And as to (a), you may be sure it has not occurred to them that the federal housing voucher program likely violates that constraint, since at a guess I would say it aids disproportionately more minorities than whites.
And they would tear their hair out at the suggestion that was unlawful discrimination, intentional or not.
Anyway, the entire controversy ignores the difference between compulsory separation of the races and spontaneous separation, perhaps resulting from people preferring to live in more or less homogeneous neighborhoods dominated by their own group, or in which their own group at least has an established presence.
Exactly as does the whole government effort for compulsory integration of schools.
By the way, how is that Fair Housing Act of 1968 constitutional?
On what constitutional peg is hung the power to so constrain local commerce?
If not the general welfare clause or the Fourteen Amendment equal protection clause, I don't see any peg available.
Bit of a stretch, in either case.
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