08 Jul 2014 Black Conservatives File Supreme Court Brief Asking Justices to Clarify Disparate Impact in Fair Housing Act
Case Could Set Major Precedent for Race and Regulation
Court Accepted Two Similar Cases Settled Before Consideration — It’s Time for Court to Finally Rule on the Issue
Washington, D.C. – With the U.S. Supreme Court finished handing down opinions for its recently-completed term, members of the Project 21 black leadership network joined a legal brief that was recently filed with the Court that asks the justices to finally resolve the vexing issue of disparate impact claims regarding the Fair Housing Act and government-subsidized housing.
“Project 21 and the other organizations joined on this brief believe it is vital to bring this crucial test of disparate impact before the Supreme Court,” said Project 21 member Hughey Newsome, an industry professional in the field of financial planning. “The notion that disparate impact claims can go beyond the intent of the authors of laws and with the only burden of proof for the accused is, in itself, disproportionate harm. And, regardless of the purpose, it sets a dangerous precedent. Once such a precedent is set, it seems there is really no limit to what can be done in the name of justice.”
Project 21’s legal brief asks the justices to accept the case of Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. for its upcoming term. In the case, ICP claims the state agency violated the Fair Housing Act by allocating housing tax credits to developers in a manner they say effectively keeps minorities in low-income minority-majority neighborhoods rather than giving them access to housing opportunities in wealthier majority-white communities in the Dallas metropolitan area. ICP charged the department’s tax credit distribution policy creates a disparate impact on black recipients of such credits.
The case is on appeal from the federal Fifth Circuit Court of Appeals.
“The framers of our government pledged to us a society based on a simple premise — that every American would be treated equally under the law. The 13th, 14th and 15th Amendments made clear that this concept applied in matters of race,” said Project 21 co-chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and is a former leadership staff member for the U.S. House of Representatives. “The disparate impact doctrine runs counter to this notion and, in particular, it does so where racial lines are involved. If we’re going to permanently end the temptation by government to divide us into racial groupings, we’ve got to return to the principles embodied in our Constitution and the color-blind policy advocated by Martin Luther King.”
In the Project 21 brief, which was written by the Pacific Legal Foundation and also joined by the Center for Equal Opportunity, Competitive Enterprise Institute, Cato Institute, Individual Rights Foundation and Reason Foundation, it is argued that the Fair Housing Act was written “to apply solely to disparate treatment, not acts having disparate impact on protected classes.” It is argued that the U.S. Supreme Court must “consider the threshold question of whether disparate impact claims are even cognizable under the Fair Housing Act” since “disparate impact claims do not depend on the intent of the action or policy.”
In the past few years, the U.S. Supreme Court has twice accepted cases similar to the case now being advocated by Project 21. The other cases — Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. and Magner v. Gallagher — were removed from the Court’s schedule after they were settled prior to argument.
“Politically-motivated settlements in the past have kept the justices from ruling on this important question of whether or not the Fair Housing Act should be officially expanded to apply to the impact of policies and not just outright discrimination as was envisioned by the lawmakers who crafted it,” said Project 21 co-chairman Cherylyn Harley LeBon, a former senior counsel for the U.S. Senate Judiciary Committee. “The Supreme Court would be wise to take this opportunity to finally tackle this important question.”
Citing the fact that appellate court jurisdictions have already tried to resolve this issue, but have formulated different ways in which to deal with claims, the Project 21 brief points out that “[r]esolution of the question by this case would end the diversity of results that occur when different jurisdictions analyze substantially similar disparate impact claims.” Furthermore, “[s]ubjecting government defendants to disparate impact claims pressure them into engaging in unconstitutional race-conscious decisionmaking to avoid liability for such claims.”
“Lower courts try to answer this tricky question, and the result is a patchwork quilt of different remedies. Civil rights law cannot change from region to region. The Supreme Court needs to determine if such enforcement is even constitutional, and then — if it is — create a uniform way to deal with it,” said Project 21’s LeBon.
Project 21’s Cooper added: “It is one thing for the law to say that no person may be mistreated due to their race, but it is something alien and distinct to say that merely because of their race they’ll receive different treatment.”
In 2014, Project 21 members have already been interviewed or cited by the media over 800 times — including TVOne, the Philadelphia Inquirer, Fox News Channel, Westwood One, St. Louis Post-Dispatch, SiriusXM satellite radio and 50,000-watt talk radio stations such as WBZ-Boston and KDKA-Pittsburgh — on issues that include civil rights, entitlement programs, the economy, race preferences, education and corporate social responsibility. Project 21 has participated in cases before the U.S. Supreme Court regarding race preferences and voting rights and defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.
Project 21, a leading voice of black conservatives for nearly two decades, is sponsored by the National Center for Public Policy Research (http://www.nationalcenter.org).
Contributions to the National Center are tax-deductible and greatly appreciated.