We dodged another bullet today in the Texas Fair Housing Act case. Writing for the 5-4 majority Justice Anthony Kennedy held to his very formalistic view of racial discrimination but found his way to the plaintiffs side. Generally only intentional race-based choices satisfy him as improper. He allows for some flexibility but is deeply skeptical otherwise, as Lyle Denniston notes at Scotusblog. But today the weight of precedent put in his hands the swing vote that allowed "disparate impact" cases to survive. He frames the issue thus:
In contrast to a disparate-treatment case, where aImportant is his recognition of the weight of history (documented by the Innovative Communities Project amicus brief) legal segregation, white flight, and the redlining of places like the one I grew up in - the archetypal suburb Levittown where unenforceable covenants to sell only to "Caucasians" were in every deed:
“plaintiff must establish that the defendant had a discriminatory
intent or motive,” a plaintiff bringing a disparate impact
claim challenges practices that have a “disproportionately
adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U. S. 557, 577 (2009) ... The question presented for the Court’s determination
is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA) 42 U. S. C. §3601 et seq.
De jure residential segregation by race was declaredValerie Schneider offers a first look at today's decision. - gwc
unconstitutional almost a century ago, Buchanan v. Warley,
245 U. S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to conditions
that arose in the mid-20th century. Rapid urbanization,
concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with governmental
support, to encourage and maintain the separation of the races.
Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent : SCOTUSblog