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Judicial Watch • Texas disparate impact amicus 1371

Texas disparate impact amicus 1371

Texas disparate impact amicus 1371

Page 1: Texas disparate impact amicus 1371

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Date Uploaded to the Library:November 24, 2014

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No. 13-1371 THE 

Supreme Court the United States 
TEXAS DEPARTMENT HOUSING AND
 COMMUNITY AFFAIRS, al., 
Petitioners, 

THE INCLUSIVE COMMUNITIES PROJECT, INC., 
Respondent. Writ Certiorari the United States 
Court Appeals for the Fifth Circuit  

BRIEF AMICI CURIAE JUDICIAL
 WATCH, INC. AND ALLIED EDUCATIONAL 
FOUNDATION SUPPORT PETITIONERS
 
Paul Orfanedes Robert Popper    Chris Fedeli Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street SW, Ste. 800 Washington, 20024 
(202) 646-5172 cfedeli@judicialwatch.org
    Counsel for Amici Curiae 
Dated: November 24, 2014 
TABLE CONTENTS 

TABLE AUTHORITIES ...................................... 

INTERESTS THE AMICI CURIAE.....................1 

SUMMARY THE ARGUMENT ............................2 

ARGUMENT ...............................................................3 	
    The Plain Language the FHA Only  
    Prohibits Intentional Discrimination, Not  
Any Disparate Impact. ..................................3 

II. 	
The Court Should Avoid the Constitutional 
    Issues Associated With Reading Disparate  
    Impact Liability into the FHA.  ......................5 

III.	
    Reading Disparate Impact Liability into  
the FHA Would Render Unconstitutional ...7 

CONCLUSION..........................................................12 

TABLE AUTHORITIES 
CASES 
Adarand Constructors, Inc. Pena, 515 U.S. 
200 (1995) .......................................................... 

Am. Ins. Assn United States HUD, 2014 U.S. 
Dist. Lexis 157904 (D.D.C. Nov. 2014)  ............ 

Ashwander Tennessee Valley Auth., 297 U.S. 
288 (1936) .............................................................. 

Chevron U.S.A. Inc. Natural Resources  
Defense Council, Inc., 467 U.S. 837 (1984) .......... 
Dean U.S., 556 U.S. 568 (2009)  ............................. 

Edward DeBartolo Corp. Fla. Gulf Coast  
Bldg. Constr. Trades Council, 485 U.S. 
568 (1988) ............................................................. 
Freeman Pitts, 503 U.S. 467 (1992)  ....................... 
Inclusive Cmtys. Project, Inc. Tex. Dept Hous. Cmty. Aff., 747 F.3d 275 (5th Cir. 2014) .......  
INS St. Cyr, 533 U.S. 289 (2001)  ...........................
 Johnson California, 543 U.S. 449 (2005)  .............. 
McMillan City New York, 253 F.R.D. 247 

(E.D.N.Y. 2008) ................................................... 

McLaughlin Florida, 379 U.S. 184 (1964) .............. 
Palmore Sidoti, 466 U.S. 429 (1984)  .....................
 Parents Involved Cmty. Sch. Seattle Sch.  

Dist. No. 551 U.S. 701 (2007) ....................... 
Plessy Ferguson, 163 U.S. 553 (1896)  ..................
 Ricci DeStefano, 557 U.S. 557 (2009)  ................
 
U.S. rel. Attorney General Delaware Hudson 
Co., 213 U.S. 366 (1909)  .......................................
 
United States Ortiz, 897 Supp. 199 (E.D. Pa.
1995) .................................................................... 

CONSTITUTION AND STATUTES 
U.S. Const., amend XIV,  ..................... U.S.C.  3604(a)  ..................................................... U.S.C.  3605(a)  .....................................................
 
OTHER AUTHORITIES 
American Anthropological Association, Response OMB Directive 15, (Sept. 1997), available 
http://www.aaanet.org/gvt/ombdraft.htm ........... 

American Anthropological Association, Statement Race, (May 17, 1998), available
http://www.aaanet.org/stmts/racepp.htm .......... 

Antonin Scalia Bryan Garner, READING LAW
 (2012) ..................................................................... 

Office Management and Budget, Revisions  
the Standards for the Classification Federal 
Data Race and Ethnicity, (Oct. 30, 1997), 
available http://www.whitehouse.gov/omb/
fedreg_1997standards/  ....................................... 

U.S. Census Bureau, What Race, available 
http://www.census.gov/topics/population/race/
about.html (visited Nov. 17, 2014) ......................
 

INTEREST THE AMICI CURIAE 
Judicial Watch, Inc. (Judicial Watch) nonpartisan educational organization that seeks topromote transparency, accountability and integrityin government and fidelity the rule law.Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and hasappeared amicus curiae this Court number occasions. 
Judicial Watch and AEF (collectively amici)believe that fidelity the rule law well tothe Constitution requires this Court overruledecades flawed lower court rulings finding that the Fair Housing Act (FHA) imposes liability based disparate impact. Amici are concerned that the imposition liability under the FHA for practicesthat are both facially neutral and unmotivated  Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole partand that person entity, other than amici curiae and their counsel, made monetary contribution intended fund the preparation and submission this brief.  The parties have given blanket consent the filing amicus briefs, and have filed letters consent with this Court. 
discriminatory intent violates the Equal ProtectionClause the Fourteenth Amendment, and are further concerned about the corrosive effect this violation the nation. Among the harms caused bythe Fifth Circuits decision are the further enshrinement the intellectually impoverished concept race into the law, the furtherance aculture racial and ethnic politics American public life, and the perpetuation racial and ethnic resentment and intolerance American society.For these reasons, amici urge the Court overturnthe Fifth Circuits decision. 

SUMMARY THE ARGUMENT 
The text the FHA prohibits only disparatetreatment, not disparate impact,2 and the Fifth Circuits interpretation the contrary was wrong. Specifically, the FHA prohibits deliberatelydiscriminatory housing practices; does not require that all practices regarding housing have statistically neutral equivalent impact any particular group people. The text the statute unambiguous this point. 
Even the Fifth Circuits interpretation was justified the text the FHA, however, this interpretation would least raise serious 
constitutional issues, and probably would constitutionally infirm, under the Equal ProtectionClause the Fourteenth Amendment. accepted,this interpretation would encourage both government agents and private actors grantbenefits the basis race, and would fail satisfy the applicable standard strict scrutiny review. For these reasons, the Court should refuse incorporate disparate impact requirement intothe FHA.  Although some statutes prohibit both, the FHA not one ofthem. For example, the Civil Rights Act prohibits bothintentional discrimination (known disparate treatment) aswell as, some cases, practices that are not intended discriminate but fact have disproportionately adverse effect minorities (known disparate impact).  Ricci DeStefano, 557 U.S. 557, 576 (2009).   

ARGUMENT 	The Plain Language the FHA Only Prohibits Intentional Discrimination, Not Any Disparate Impact. 
The Fifth Circuits finding that housing marketactions resulting racial disparate impact violate the Fair Housing Act inconsistent with plain reading the text the FHA and should bereversed. Dean U.S., 556 U.S. 568, 572 (2009)([W]e ordinarily resist reading words elements into statute that not appear its face.).  For instance, Section 804 the FHA does nothing morethan make unlawful refuse sell rent after the making bona fide offer, refuse tonegotiate for the sale rental of, otherwise makeunavailable deny, dwelling any person because race, color, religion, sex, familial status, national origin. U.S.C.  3604(a). The phrasebecause race conveys the fact that race must the reason (or least reason) for actorsprohibited discriminatory conduct.  See also U.S.C.  3605(a). Accordingly, the FHAs plain language requires intentional discrimination againstmembers named class order for action unlawful. 
The Fifth Circuit acknowledges this plainlanguage but fails apply it, instead relying theregulations the U.S. Department Housing andUrban Development (HUD) interpreting the FHA. 
Inclusive Cmtys. Project, Inc. Tex. Dept Hous. Cmty. Aff., 747 F.3d 275, 276, 279 (5th Cir. 2014). However, the District Court for the District Columbia subsequently struck down those sameregulations, the ground that the text the FHAsimply cannot interpreted impose disparateimpact liability.  That court correctly concluded: 
Put simply, Congress knows full well how provide for disparate impact liability,and has made its intent known the past including clear effects-based language when chooses. The fact that this type effects-based language appears nowhere the text the FHA is, say the least, insurmountable obstacle the defendants position regarding the plain meaning the Fair Housing Act.   
Am. Ins. Assn United States HUD, 2014 U.S. Dist. Lexis 157904, *31 (D.D.C. Nov. 2014) (internalcitations omitted).   
II. 	The Court Should Avoid the Constitutional       Issues Associated With Reading Disparate  Impact Liability into the FHA. 
Even were possible interpret the FHA establish disparate impact liability, well-settled canons statutory construction and judicialprocedure counsel that this interpretation should rejected. Foremost among these the canon statutory construction providing: 
[W]here statute susceptible two constructions, one which grave and doubtful constitutional questions arise andby the other which such questions areavoided, [the Courts] duty adopt thelatter. 
U.S. rel. Attorney General Delaware Hudson Co., 213 U.S. 366, 408 (1909); see INS St. Cyr, 533 

U.S.
 289, 299-300 (2001). related rule holds: 

[I]f case can decided either two grounds, one involving constitutional question, the other question statutoryconstruction general law, the Court will decide only the latter.   
Ashwander Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, concurring); see Antonin Scalia Bryan Garner, READING LAW, 251 (2012)(discussing relation between doctrines).  
Taken together, these principles require courts interpreting statutes construe them way that avoids raising constitutional concerns. The force these principles has been decisive even where government agencys contrary interpretationordinarily would have commanded great deference.For example, duty avoid constitutional concernshas been held override the Chevron deference normally due the statutory interpretations theNational Labor Relations Board. Edward DeBartolo Corp. Fla. Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 574-75 (1988); see Chevron U.S.A. Inc. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 
Importing disparate impact standard into theFHA, even were somehow textually justified, would contravene these principles raising serious constitutional issues under the Equal Protection Clause. definition, disparate impact statuteis violated proscribed statistical disparitybetween racial groups, even though that disparitywas not the result deliberate conduct.  When court seeks remedy racial disparity that was not caused intentional discrimination, granting the recipients that relief benefit thebasis their race. Further, those who seek avoid disparate impact liability can only intentionally (prophylactically) discriminating favor statistically underrepresented group. Accordingly, disparate impact statute requiresgovernment and private actors engage explicit race-based decision making. These outcomes are, say the least, problematic under the EqualProtection Clause the Fourteenth Amendment. the analogous context disparate impactclaims under Title VII, has been observed that the statute not only permits but affirmatively requires race-based actions when disparate-impactviolation would otherwise result. Ricci DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J.,concurring). Thus: 
Title VIIs disparate-impact provisionsplace racial thumb the scales, often requiring employers evaluate the racial outcomes their policies, and make decisions based (because of) those racial outcomes. That type racial decisionmaking is, the Court explains, discriminatory. 
Id. explained below, amici respectfully submit that the inclusion disparate impact standardin the FHA would violate the Equal Protection Clause. 
III. Reading Disparate Impact Liability into  the FHA Would Render Unconstitutional. 
The interpretation the FHA adopted the Fifth Circuit would render the statute unconstitutional. Specifically, the interpretationwould fail constitutional strict scrutiny under both the compelling interest requirement and the narrow tailoring requirement.   
A core purpose the Fourteenth Amendment was away with all governmentally imposeddiscrimination the basis race.  Palmore Sidoti, 466 U.S. 429, 432 (1984). Classifications persons according their race are subject themost exacting scrutiny; pass constitutional muster they must justified compelling governmentalinterest and must necessary theaccomplishment their legitimate purposes.  Id., quoting McLaughlin Florida, 379 U.S. 184, 196 (1964); see also Adarand Constructors, Inc. Pena, 515 U.S. 200, 227 (1995). All racial classifications [imposed government] must analyzed reviewing court under strict scrutiny. Johnson, 543 
U.S. 505. Importantly, strict scrutiny theappropriate standard, even for so-called benignracial classifications. Parents Involved Cmty. Sch. Seattle Sch. Dist. No. 551 U.S. 701, 741 (2007). 
First, the Fifth Circuits interpretation theFHA requiring housing market participants tomake race-conscious decisions fails the compelling governmental interest requirement strict scrutiny review. The Fifth Circuits decision mandates racial discrimination without evidence compelling governmental interest. Its interpretationrequires Texas balance the placement low income housing units according the racial composition various neighborhoods, rather thanpursuing rational policy based only relevanteconomic and income data. Inclusive Cmtys., 747 F.3d 279-280. However, racial group balancing not compelling state interest. fact, this Court has found quite the opposite:  
Accepting racial balancing compellingstate interest would justify the impositionof racial proportionality throughoutAmerican society, contrary our repeated recognition that [a]t the heart theConstitutions guarantee equalprotection lies the simple command that the Government must treat citizens individuals, not simply components aracial, religious, sexual national class. 
Parents Involved, 551 U.S. 729 (internal citationsomitted). Absent some other compelling state interest, [r]acial balance not achieved for itsown sake. Freeman Pitts, 503 U.S. 467, 494 (1992). 
Second, the Fifth Circuits interpretation fails strict scrutiny review because not narrowly tailored. Adarand Constructors, 515 U.S. 227 ([R]acial classifications are constitutional only they are narrowly tailored measures that furthercompelling government interests). Because racial and ethnic categories are social constructs that areinherently vague, ambiguous, arbitrary, reliant onself-identification, and therefore constantly shifting, the mandated use racial group impact tests underthe FHA will never narrowly tailored advancea compelling government interest.    
Not even the federal government can definewhat race racial group with any precision. The government last tried adopt regulations codify human races and ethnicities 1997, definingthem vaguely based which continent country person has origins in.3  This approach often extremely problematic and fraught with wild imprecision, has been thoroughly documentedelsewhere. See, e.g., United States Ortiz, 897 Supp. 199, 203 (E.D. Pa. 1995); McMillan City New York, 253 F.R.D. 247, 249 (E.D.N.Y. 2008); c.f. Plessy Ferguson, 163 U.S. 537, 552 (1896). Today,the government relies self-identification todetermine the existence racial groups.4  This has the benefit avoiding the intrusive inquiry intoblood lines the Plessy era, but results process that arbitrary well imprecise.   
The American Anthropological Association (AAA) has observed that our concepts racial categories are generally too crude convey accurateand useful information about individuals and Office Management and Budget, Revisions the Standards for the Classification Federal Data Race and Ethnicity, (Oct. 30, 1997), available http://www.whitehouse.gov/omb/fedreg_1997standards/. U.S. Census Bureau, What Race, available http://www.census.gov/topics/population/race/about.html (visited Nov. 18, 2014) (The Census Bureau collects racial data based onself-identification.).   
groups.5 Conversely, reliance racial categoriescan highly effective for furthering misinformationand spreading irrational beliefs about others: 
Race thus evolved worldview, body prejudgments that distorts our ideasabout human differences and groupbehavior. Racial beliefs constitute myths about the diversity the human speciesand about the abilities and behavior people homogenized into racial categories. 
Id. The AAA even has recommended that the government phase-out its use racial categories order achieve the goal eventually eliminating racial discrimination.6 
Any governmentally mandated use racial classifications  crude, ambiguous construct  American Anthropological Association, Statement Race, (May 17, 1998), available http://www.aaanet.org/stmts/racepp.htm (In the United States both scholars and the general public have been conditioned viewing human races natural and separate divisions within the human speciesbased visible physical differences. With the vast expansion scientific knowledge this century, however, has becomeclear that human populations are not unambiguous, clearly demarcated, biologically distinct groups).  American Anthropological Association, Response OMBDirective 15, (Sept. 1997), available http://www.aaanet.org/gvt/ombdraft.htm ([T]he effective elimination discriminationwill require end such categorization, and transition toward social and cultural categories that will prove morescientifically useful and personally resonant for the public than are categories race.). 
reliant vague self-determinations made one atime hundreds millions Americans  sureto fail the requirement that narrowly tailoredto satisfy strict scrutiny.  The only way treat thetroubled concept race the law should toabsolutely prohibit its use basis for making decisions affecting individuals groups.Conveniently, such prohibition precisely whatthe Constitution already requires. 

CONCLUSION 
Amici hold that any disparate impact standard read into the FHA would directly conflict with theguarantees the Equal Protection Clause theFourteenth Amendment, and could not justified narrowly tailored achieve compelling government interest. addition, any such interpretation violates the plain meaning theFHA. minimum, such interpretation theFHA would raise serious constitutional questionswhich must avoided the first place.Accordingly, amici respectfully submit that thisCourt should refuse graft disparate impact theory liability onto the unambiguous language the FHA. 
For all the foregoing reasons, the judgment ofthe Fifth Circuit should reversed.    
Respectfully submitted, 
Paul Orfanedes Robert Popper    Chris Fedeli Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street SW, Ste. 800 Washington, 20024 
(202) 646-5172 cfedeli@judicialwatch.org 
Counsel for Amici Curiae 
November 24, 2014