Although the case hasn’t gotten as much mainstream press attention as the forthcoming blockbuster rulings on marriage and on the ACA, the Supreme Court will be issuing a crucial decision on fair housing in the next few weeks in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A bad decision would reverse decades of positive decisions and progress in fair housing.
As our nation learned during the riots of the 1960s, and is tragically re-learning today, segregation in housing is both a major cause and effect of our urban problems and inequality. Partly in response, Congress enacted the Fair Housing Act in 1968, with the explicit purpose to “provide, within constitutional limitations, for fair housing throughout the United States.” For almost four decades, every appellate court that has considered the issue and the Department of Housing and Urban Development (HUD) under both Republican and Democratic administrations have interpreted the Act to prohibit conduct that has a discriminatory effect based on race, color, religion, gender, disability, or familial status without a good justification. The issue in Texas Department is whether the Court will overturn that standard and rule that you don’t have a case under the Fair Housing Act unless you can prove specific intent to discriminate.
Why is this important? On a practical level, requiring proof of intent will make fair housing enforcement much more difficult; as one court noted, “clever men may easily conceal their motivations.” More broadly, discrimination and segregation often result from policies that may not be motivated by specific bad intent but that build on historic and systemic patterns of discrimination and lock out racial and other minorities. The “disparate impact” test, which is the legal term for the standard based on unjustified discriminatory effects, has helped combat that problem.
For example, in one case a building policy that imposed a limit of two people per bedroom resulted in the effective eviction from a one-bedroom apartment of a young couple who had just had a child. The policy was challenged based on disparate impact. It turned out there was no good business justification for the policy, and 150 units were opened up for families with children as a result. Similar challenges to policies that excluded disabled veterans by requiring residents to have full-time jobs or zoning restrictions that excluded racial minorities by requiring large lot sizes have helped break down long-entrenched problems of discrimination and exclusion.
All eleven federal courts of appeal that have considered this issue since the 1970s have approved the disparate impact standard. As explained in a brief to the Supreme Court by former Republican and Democratic HUD appointees, HUD has also followed this standard for decades. As a former HUD official and career-long civil rights attorney, I know the importance of the disparate impact test. As I wrote in a law review article more than 35 years ago, “only by concentrating on effect can the issue of discrimination be realistically addressed at all.”
If the Supreme Court overturns the long-accepted disparate impact standard, the continuing problems of discrimination and segregation in our country will only get worse in the years to come. The outcome of this case will have an enormous impact on millions of people throughout America, and on the nature of who we are as a nation.
When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.
But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.
Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.
Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.
“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”
Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.
Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.
“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”
The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”
Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”
“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”
Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.
Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.