The Other Supreme Court Decision

Texas hates authority figures, particularly anything or anyone that defies their basic Evangelical, white traditionalist view of the world – rugged individual out to squeeze the land into producing Texas gold. Gun ownership there is as much to insure the ability to overthrow an unpopular regime as it is for the myth of “self-defense” or the joy of hunting.

Whenever there is a federal statute aimed at protecting a segment of society that Texans at the top generally hold in disdain, there is almost always state reaction against the ruling or the practice. Abortion is the law of the land, but Texas has regulated virtually all of their abortion clinics out of existence. Voting laws are supposed to be inclusive, so Texas pioneered new voter ID laws that aren’t. Texas has perfected gerrymandering to the point where their only large liberal city (Austin) is represented in Congress by one Democrat and four ultra-right-wing Republicans.

Texas abhors same-sex marriage and has done everything possible to make sure it “doesn’t happen here.” Texas textbooks clawed “creationism” back into one of the largest book-ordering set of school districts in the country. They refused to expand Medicare or create a Texas healthcare exchange under the Affordable Care Act. The notion of environmental protection regulations defiles their religious views and interferes with their fracks and drills. Bottom line, Texas usually finds itself on the wrong side of trends and history, but is big enough to have very big deleterious impact.

On the same day that the Supreme Court ruled in support of the Affordable Care Act, another monumental ruling sort of fell between the cracks. Texas Dept. of Housing vs. Inclusive Communities Project is the case. Lyle Denniston (writing for ScotusBlog.com, June 25^th) gives us the background: “The ruling focused on interpreting the Fair Housing Act, passed by Congress in 1968 as part of a wider-ranging civil rights law, in the wake of the assassination of the famed civil rights leader, the Rev. Martin Luther King, Jr., and warnings by a presidential commission that had studied urban riots, declaring that America was moving toward ‘two societies, one black, one white — separate but unequal.’

“The Act makes it illegal for anyone to refuse to sell or rent a house or apartment after receiving a genuine offer, or to fail to make available or deny a residence to a person ‘because of race, color, religion or national origin.’  Congress later added family status to the categories protected from some refusals.

“Although it has always been clear that the Act outlawed housing discrimination when the landlord, developer, or government agency acted with the specific intent to discriminate, a question has lingered whether the law also allowed claims of ‘disparate impact’ — that is, claims that a given housing policy or decision had a more negative impact on race (or other protected categories) than on others seeking housing, even though there was no proof of an intent to discriminate…

“The issue had reached the Supreme Court in a new case — the third try to get the Justices to decide the issue — from Texas, involving claims by a group seeking to desegregate racial housing patterns in the Dallas metro area that a state agency was placing too many subsidized housing projects in minority-dominated neighborhoods, avoiding putting projects in white-dominated suburbs.  The argument was that the agency’s policies had a ‘disparate impact’ on racial minority occupants of the projects.”

You see Texas cities had a habit of making sure that subsidized housing construction kept those projects far away from middle and upper class neighborhoods, effectively ghettoizing such residential units. They complied with the requirements of furnishing such housing… sort of. So the Court allowed lower courts to look at the local patterns and practices, the “disparate impact” (vs intent) if you will, on how the housing programs are actually implemented and whether such discriminatory realities resulted.

To put it mildly, Texas policy had a bad day before the U.S. Supreme Court on June 25^th. But while the Court ruled against the Texas Housing appeal, it didn’t give a carte blanche to affordable income housing advocates either. “[O]n the closing pages, that [majority] opinion [written by Justice Anthony M. Kennedy] raised significant question about lawyers and lower courts pushing the [‘vestiges of residential racial segregation’] theory so far that it begins to compel providers of housing to make race a central focus of their policy, raising legal problems in the private sector and constitutional problems for government housing efforts and projects.

“That part of the opinion spelled out fairly strict demands on what those making ‘disparate impact’ claims must show — a mere disparity in statistics on race in housing opportunity would not be enough, for example — before a developer, real estate firm, or government housing agency even had to defend against such a claim.   Courts must not turn ‘disparate impact’ claims, the opinion emphasized, as intrusive second-guessing of policies that were not driven by intentional race bias…It will now be up to lower courts, as those kinds of claims continue to be filed, to apply the limits and the caution that the Kennedy opinion mandated.” Denniston. But where patterns of racial segregation endure and are reinforced by governmental practices, well, that’s a different matter. Hi Texas.

I’m Peter Dekom, and erasing old feelings, traditional practices – even under the name of justice, fairness and democracy – is a long and difficult road.