Much Ado About Disparate Impact . . . Or, Much About Doing Nothing

Forbes recently published an article that asks, “Could the Fair Housing Act be used to abolish restrictive zoning?” (http://www.forbes.com/sites/scottbeyer/2016/12/02/could-the-fair-housing-act-be-used-to-abolish-restrictive-zoning/#490f1dacdd71)

Why, yes. Yes it can.

Since at least 1977.

The real question is, “Could the Fair Housing Act be more neglected?”

Why, no. One hopes not.

Here’s why.

The Fair Housing Act has allowed disparate impact claims since time immemorial. By “time immemorial,” I mean, since I was about 8 years old. Some of you know this was a very long time ago. In 1977, the Federal Court of Appeals for the Seventh Circuit said:

“A strict focus on intent permits racial discrimination to go unpunished in the absence of evidence of overt bigotry. As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared. We cannot agree that Congress in enacting the Fair Housing Act intended to permit municipalities to systematically deprive minorities of housing opportunities simply because those municipalities act discreetly. . . .

“We therefore hold that at least under some circumstances a violation of section 3604(a) can be established by a showing of discriminatory effect without a showing of discriminatory intent.” Metro. Hous. Develop. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). A copy of the case is available here: http://openjurist.org/558/f2d/1283/metropolitan-housing-development-corp-v-village-of-arlington-heights

Note that the court says “showing of discriminatory effect.” In other words, they are discussing evidence, not a cause of action. This is important because evidence shifts from case to case; a cause of action can be eliminated. In other words, an idea like presumption of fault might be eliminated—but a plaintiff’s ability to show that a defendant plowed into the rear of a car at a red stop light would not be. No matter what labels were invoked, the plaintiff would very likely recover.

Move forward nearly forty years, and you’ll see rooms full of fair-housing lawyers hand-wringing over whether disparate impact exists. So, in 2013, you’ll see SCOTUSBlog characterizing a case as asking, “Whether disparate impact claims are cognizable under the Fair Housing Act.” (http://www.scotusblog.com/case-files/cases/mount-holly-v-mt-holly-gardens-citizens-in-action-inc/)

In fact, blogs and newspaper articles went so far as to contemplate the death of fair housing. MSNBC said that the settlement of the Mount Holly case, keeping disparate impact off the Supreme Court’s docket, “spared” the very Fair Housing Act itself. (http://www.msnbc.com/msnbc/mount-holly-settlement-spares-fair-housing-act-for-now) Wait! In 1977, the court said . . . “We therefore hold . . . “.  Metro. Hous. Develop. Corp., 588 F.2d. at 1290.

The hand-wringing continued, largely at conferences with well-stocked snack tables, past 2013. Over donuts, concerns were aired over a case looming large (in imaginations): Texas Dep’t of Hous, & Cmity Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015). The Court recalled its own long history of affirming disparate-impact type theories, recalling its own 1988 (the year I graduated from high school) invalidation of a zoning scheme that had a . . . disparate impact:

“Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of disparate-impact liability. See, e.g., Huntington v. Huntington Branch, NAACP, 488 U. S. 15, 16–18.” Huntingon is found at: 488 U.S. 15 (1988). Or, here: https://scholar.google.com/scholar_case?case=16996221344809098022&hl=en&as_sdt=6&as_vis=1&oi=scholarr A link to Inclusive Communities is here: https://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

Of course, the Fair Housing Act itself was never threatened—if anything was threatened, it was one strain of evidence that could be introduced to show discrimination occurred. Saying the Fair Housing Act was threatened is like saying the entire field of tort law is eliminated because one state applies a contributory negligence theory as a bar to recovery. In other words, fair housing standbys, like the classic case of black people having doors slammed in their faces by landlords hurling racial epithets, would have been just as viable as ever. As the Seventh Circuit pointed out in 1977, “overtly bigoted” actions are (were?) on the decline, so disparate impact is helpful in finding relief where discrimination is more subtle. This was a matter of evidence—people were no longer making bigotry clear with racial slurs, “no blacks” advertisements, or similar overt acts. But disparate impact has always been the delicious frosting piled high on the fair housing cupcake. It was never the cupcake itself.

But, even giving credence to the idea that the law on disparate impact was ever anything less than clear, the hysteria surrounding the cases was nothing more than a distraction from the very real work in front of those who really want to bring about fair housing. During the swirl of hysteria, I successfully litigated a case that hinged, in part, on disparate impact. We survived a motion to dismiss, and, with a lot of hard work on the part of the court system and all the parties, eventually settled.

Throughout the litigation, I was continually cautioned by well-meaning, experienced fair housing practitioners that I was tilting at windmills because no one was really sure about this disparate impact thing. Now, I practice in Illinois—within the very Seventh Circuit that gave us Metropolitan Open Communities v. Arlington Heights when I was eight years old! At very least, unless and until the Supreme Court overturned the long line of cases approving disparate impact, I was not putting forth a frivolous theory.

Every lawyer expects opposing counsel. What no one told me about was the long line of people receiving money from HUD to promote fair housing who would oppose me. From concerned tongue-clucking from older lawyers to absconding with my clients’ paperwork by a fair housing group (and I phone tirade by its lawyer when I issued a subpoena to get it back), I had my time wasted and my energy depleted (on a case where I charged nothing to get a significant result for more than 50 people, requiring me to effectively give up my income-stream for two years) by those who should be allies. By those who get funding to be allies.

When the motion to dismiss was decided, by a relatively conservative judge, disparate impact was front and center. Rather than the sanctions and ruination of my career that had been prophesied, my disparate impact claim was dismissed—not because it didn’t exist, but because, it is a “method of proof, not a separate cause of action.” Teran v. Wheeling, 13-cv-06509, p. 13 (NDIL 2013) available at, http://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2013cv06509/287581/48/ My complaint already stated a cause of action for violation of the Fair Housing Act; it did not hinge on disparate impact—a method of proof, not a separate claim.

Likewise, Mr. Forbes Writer, your case about unfair zoning has already been litigated. And won. Fair housing lawyers need only put down their donuts, smell the coffee, and use an evidentiary tool that has been available since I was 8 years old.

Me? I’m enjoying that creamy frosting. I earned it by staying the course in the face of threats, ridicule, and interference with my representation of those most in need.