Under Chief Justice John Roberts, the Supreme Court has developed a remarkably sanguine view of race in America. “Things have changed dramatically,” Roberts wrote in 2013 in striking down the heart of the Voting Rights Act.
In other words, he seemed to suggest, this is no longer the country of Bull Connor and fire hoses, and any lingering effects of our entrenched history of racial discrimination are best dealt with if everyone would simply agree to treat each other as equals.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in a 2007 case.
The court’s latest target in its quest for a race-blind nation is the Fair Housing Act, approved by Congress in 1968 as the final cornerstone of civil rights legislation and broadened in 1988. The act makes it illegal to refuse to sell, rent “or otherwise make unavailable or deny” a property to anyone because of race, sex or other protected categories.
The question before the judges during oral arguments on Wednesday was this: Does that language require that the discrimination be intentional, or does it allow plaintiffs to claim a discriminatory effect, regardless of intent?
If ever there was a legal issue that appeared to be settled, this is it. Over four decades, every one of the 11 federal appeals courts to consider the law has found that it covers claims of discriminatory effect. A 2013 regulation issued by the Department of Housing and Urban Development provides explicitly for such claims.
This legal consensus is easy to understand. The law was meant to be a broad and powerful tool against the effects of unjust discrimination in housing. Today, persistent housing segregation remains a fact of life for many blacks, with a range of adverse consequences including poorer economic prospects, lower property values and inferior public schools.
The ability to show discriminatory effect has only become more important as intentional discrimination has become harder to prove. To take one prominent example, the Justice Department relied on it to negotiate the largest-ever fair-lending settlement — $335 million — with Bank of America in 2011. The bank’s mortgage unit, Countrywide Financial, had charged higher fees and interest rates to black and Latino borrowers than to whites with the same credit risk, a practice that former assistant attorney general Thomas Perez called “discrimination with a smile.”
Even so, the Roberts court had agreed on two earlier occasions to review the scope of the act, suggesting to many people that it is not happy with the law’s mainstream interpretation. The cases were withdrawn or settled at the last minute, with help from the federal government and civil-rights groups worried about how the court would rule.
On Wednesday, the justices finally got their shot — a third case, out of Dallas, involving federal tax credits that encourage developers to build low-income housing.
The challengers argue that the law’s language was never meant to cover anything beyond intentional discrimination. If it did, they say, insurers, developers and lenders could be forced to make race-based decisions in order to avoid liability under the law.
During oral argument, Justice Antonin Scalia appeared to support the law’s broader reading. When Congress amended the act in 1988, he reminded the challengers’ lawyer, it was clearly aware of the discriminatory effect standard, yet did not write it out of the law. “Why doesn’t that kill your case?” he asked.
The Fair Housing Act has functioned well, and to the benefit of the nation’s most vulnerable renters and home buyers, for more than 40 years. The court could demonstrate a greater appreciation of the stubborn and long-term effects of racial discrimination, not to mention a basic respect for the expertise of a federal agency, by upholding the universal interpretation of the appellate courts.