Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. (No. 13-1371)
On November 24, 2014, Judicial Watch joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the United States Supreme Court in support of the State of Texas’ appeal of a lower court ruling upholding a federal Fair Housing Act (FHA) interpretation that imposes liability on a state housing decision that disparately impacts certain minorities, despite the absence of evidence of any discriminatory intent.
In their amicus, Judicial Watch and AEF argue that the FHA practice violates the Equal Protection Clause of the Fourteenth Amendment and could, therefore, have a “corrosive effect” on the nation:
Amici are concerned that the imposition of liability under the FHA for practices that are both facially neutral and unmotivated by discriminatory intent violates the Equal Protection Clause of the Fourteenth Amendment, and are further concerned about the corrosive effect of this violation on the nation. Among the harms caused by the Fifth Circuit’s decision are the further enshrinement of the intellectually impoverished concept of race into the law, the furtherance of a culture of racial and ethnic politics in American public life, and the perpetuation of racial and ethnic resentment and intolerance in American society. For these reasons, amici urge the Court to overturn the Fifth Circuit’s decision.
The amicus brief argues:
The plain language of the FHA only prohibits intentional discrimination, not any resulting ‘disparate impact’
Section 804 of the FHA does nothing more than make it unlawful to ‘refuse to sell or rent after the making of a bona fide offer, or 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’ … The phrase ‘because of race’ conveys the fact that race must be the reason (or at least a reason) for an actor’s prohibited discriminatory conduct … Accordingly, the FHA’s plain language requires intentional discrimination against members of a named class in order for an action to be unlawful.
The use of ‘disparate impact’ liability would render the FHA unconstitutional
First, the Fifth Circuit’s interpretation of the FHA as requiring housing market participants to make race-conscious decisions fails the “compelling governmental interest” requirement of strict scrutiny review. The Fifth Circuit’s interpretation of the FHA as requiring housing market participants to make race-conscious decisions fails the “compelling governmental interest” requirement of strict scrutiny review. . . Its interpretation requires Texas to balance the placement of low income housing units according to the racial composition of various neighborhoods, rather than pursuing rational policy based only on relevant economic and income data. . .
Second, the Fifth Circuit’s interpretation fails strict scrutiny review because it is not “narrowly tailored.” Because racial and ethnic categories are social constructs that are inherently vague, ambiguous, arbitrary, reliant on self-identification, and therefore constantly shifting, the mandated use of racial group impact tests under the FHA can never be “narrowly tailored” to advance a compelling government interest. . .
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