Judicial Watch and Allied Educational Foundation File Amicus Brief with Supreme Court in Support of Texas Disparate Impact Appeal
NOVEMBER 25, 2014
(Washington, DC) – Judicial Watch announced today that it 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. The brief was filed November 24, 2014 (Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. (No. 13-1371)).
Under the disparate impact theory of racial discrimination, one can be held liable for discrimination for a policy that statistically disadvantages a specific minority group even if that negative “impact” was neither foreseen nor intended. In the Texas case, on appeal from the U.S. Federal Court of Appeals for the Fifth Circuit, the Inclusive Communities Project sued the state for allocating a disproportionate number of federal low-income housing tax credits to minority neighborhoods. The Supreme Court has twice before granted review on the disparate impact issue, only to have both cases scuttled by controversial pre-hearing settlements enabled by the Obama administration.
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.
Among other points, today’s 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. . .
Judicial Watch previously has gone to court four times in its efforts to oppose the Obama administration’s disparate impact policies. On November 2, 2012, it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Housing and Urban Development (HUD) seeking documents relating to possible collusion between the Obama administration and the city of St. Paul, MN, in withdrawing a disparate impact appeal pending before the U.S. Supreme Court. Judicial Watch separately obtained documents under the Minnesota Data Practices Act, showing that St. Paul City Attorney Sara Grewing arranged a meeting between the then-chief of the Department of Justice (DOJ) Civil Rights Division, current Secretary of Labor Tom Perez, and Mayor Chris Coleman a week before the city’s withdrawal from the case, captioned Magner v. Gallagher. Following Perez’s visit, the city withdrew its case and thanked DOJ and officials at HUD for their involvement.
On September 3, 2013, Judicial Watch filed an amicus brief with the Supreme Court on behalf of the township of Mt. Holly, New Jersey, arguing that the FHA prohibits only disparate treatment, not alleged discriminatory intent. On September 24, it filed a Freedom of Information (FOIA) lawsuit against HUD for all records of communications regarding two disparate impact housing discrimination lawsuits, Magner v. Gallagher and the Township of Mt. Holly v. Mt. Holly Gardens Citizens Association. Mount Holly like Magner, was withdrawn from the Supreme Court docket before arguments could be heard. And on February 3, 2014, Judicial Watch and the Allied Educational Foundation filed an amicus curiae brief with the U.S. District Court for DC urging that court to reject HUD’s racial disparate impact regulations in a lawsuit brought by the American Insurance Association. Three weeks ago, that Court agreed and rejected HUD’s regulations.
“Despite the desperate corrupt efforts of the Obama administration, the Supreme Court is now considering ‘disparate impact,’ the unfair government race theory that smears targets as racist with absolutely no evidence,” said Judicial Watch President Tom Fitton. “As we note in our amicus brief, ‘the only way to treat the troubled concept of ‘race’ in the law should be to absolutely prohibit its use as a basis for making decisions affecting individuals or groups. Conveniently, such a prohibition is precisely what the Constitution already requires.’”
The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects which include, but are not limited to, educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government and judicial corruption.