By Francesca Procaccini
In a seismic, albeit relatively foreseeable, week at the Supreme Court—one in which love and equal justice triumphed over antiquated beliefs and modes of interpreting the Constitution, in which President Obama’s landmark health care bill again repelled attack, in which rights of criminal defendants were safeguarded and the viability of solitary confinement forcefully challenged—one shock wave that emanated from the court was at least as momentous and by far the most unpredictable: in a 5-4 vote the United States Supreme Court confirmed that claims for disparate impact discrimination are cognizable under the Fair Housing Act (FHA)—that is, the FHA prohibits housing policies that have an unintentional discriminatory affect on minorities. The upshot: a Court that has been relatively regressive on civil rights issues protected one of the most powerful tools that poor, minority Americans currently have to fight back against housing discrimination, blighted housing, and the racial segregation of our cities and suburbs.
I recently argued in the Harvard Law and Policy Review that the Supreme Court should uphold the availability of disparate impact claims under the Fair Housing Act and the Equal Credit Opportunity Act, not because it is sound policy (which it is), but because it is the best interpretation of these statutes when analyzed according to how the Court has always analyzed whether anti-discrimination statutes prohibit disparate impact discrimination. Even amid sea changes in the Court’s “political” orientation and the now decades-old spat over whether “textualism” or “purposivism” provides the best method of statutory interpretation, a majority of the Supreme Court has consistently approached the task of interpreting whether a civil rights statute outlaws disparate impact discrimination by reading the text broadly for results-oriented language in light of the purpose and objectives of the statute, its structure, and its legislative and reenactment history.
And this week, in a surprising and crucial victory for civil rights, Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, not only affirmed that the FHA creates liability for disparate impact discrimination, but also confirmed that the way in which judges should analyze civil rights and anti-discrimination statutes is through a holistic and contextual understanding that the political branches, perhaps against all odds, have acted to move the nation towards greater racial integration. In other words, a contextual reading has won out over a formalist reading, and TDHC is strike three for the argument that the inclusion or omission of magic words like “adversely affect” do not alone determine the triumph or demise of Congress’s efforts to increase racial integration and harmony.
Specifically, the Court instructed that the proper way to interpret whether a civil rights statute creates liability for disparate impact discrimination is to look broadly for “results oriented language” and then check the purpose, structure, and history of the statute for conformity with this textual interpretation. Justice Kennedy devoted a considerable number of words to reprising the climate of racial violence and discord that directly led to the passage of the FHA in 1968, so as to shine a light on the statute’s central purposes. Next, by examining the FHA’s disparate impact provision within the context of the whole statute and reminding that Congress reenacted this provision unchanged after all nine appellate courts to address the issue had ruled that it authorized claims for disparate impact liability, Justice Kennedy reached beyond the four corners of the statute to more accurately perceive its contours.
In the process, Justice Kennedy rejected the tenuous legal argument—advanced by private employers, housing developers, and credit lenders—that there is tension between the Supreme Court’s 1971 opinion in Griggs v. Duke Power Co., upholding disparate impact liability in employment discrimination under Title VII, and the Court’s 2005 opinion in Smith v. City of Jackson, upholding disparate impact liability in age discrimination under the Age Employment Discrimination Act (AEDA). Defendants in civil rights lawsuits have tirelessly attempted to pigeon-hole Griggs as a one-dimensional purposivist opinion and then to paint Smith as its modern and rational textualist counterpart, insinuating that the interpretive methodologies used in these two opinions are diametrically opposed and that Smith flat-out rejects the method of looking to a civil rights statute’s purpose and history to better interpret its text. This week’s TDHC opinion should be read as finally putting this feeble argument to rest.
Although a careful reading of both Griggs and Smith actually reveals that both opinions employ a holistic analysis that relies on text, purpose, history, and structure, Justice Kennedy went to great lengths to explicitly state that the “the logic of Griggs and Smith” both counsel that the courts should interpret the words of an anti-discrimination provision to be “consistent with the structure and objectives of the [statute].” Accordingly, in TDHC, simply the word “discriminate” was itself enough to find that Congress had prohibited disparate impact discrimination once that general word was read in light of the history, purpose, and structure of the FHA. It was easier to contrast Griggs and Smith when those opinions formed two isolated data points, but this third case charts a pattern and confirms that the various provisions of civil rights statutes are too important to reduce to simplistic semantics. Rather, they require a multidimensional, perceptive, and faithful understanding of the legislative process and its rare achievements to advance the civil rights of poor and minority Americans.
What’s next? Opponents of disparate impact liability will continue to wage their campaign to excise the doctrine from civil rights law, and next up on the chopping block appears to be the Equal Credit Opportunity Act (ECOA), which protects against discriminatory lending and borrowing practices. Interpreted correctly—that is, according to the type of analysis the Supreme Court has now used to interpret the Fair Housing Act, Title VII, and the AEDA—the ECOA prohibits lenders from pursing lending practices that intentionally discriminate against minority borrowers or that disproportionately deny minority borrowers fair and equal access to credit. And the Supreme Court should rule as such when this issue inevitably reaches its docket.