Thomas and Alito’s Straw Man Arguments Against The Fair Housing Act

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Photo Credit: “2009 Eastern Conference Finals Game 1” by Chris Metcalf (Flickr)

While everyone is laughing at Justice Antonin Scalia’s “interpretive jiggery-pokery” and “pure apple sauce”, another very important SCOTUS case was decided yesterday. The Fair Housing Act was up for interpretation in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. In a 5-4 decision, the Supreme Court, in an excellent Opinion of the Court by Justice Kennedy, decided in favor of the Texas Department of Housing and Community Affairs, preventing the dismantling of the Fair Housing Act, a landmark civil rights law.

Title VII of the Civil Rights Act of 1968, more commonly known as the Fair Housing Act, was created in the week following the assassination of Dr. Martin Luther King to address racial segregation in U.S. housing. Since then it has been the best weapon against segregation in American cities. Jim Crow was direct segregation in the South, but housing discrimination was indirect segregation in the North. The act outlawed the discrimination or refusal of housing based on race, color, religion, sex, or national origin. More importantly it outlawed coercion, threatening, intimidation, or interference with someone’s right to housing. Without the FHA minorities would have a harder time fighting exclusionary zoning laws, discrimination in lending and subprime mortgages, and subtle real estate conventions that prevent integration. It is still the best defense against modern-day segregation.

The case was closer than King v. Burwell (6-3), also released Thursday morning. While everyone has been discussing the angry blog-post-turned-dissenting-opinion by Justice Scalia in King, conservative justices Thomas and Alito wrote “scathing” dissents in the FHA case. Scathing is definitely up for interpretation, but two parts of their dissents stood out as misguided views on racial disparities in the United States.

First Justice Thomas:

Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.”

“Yet, if disparate-impact liability is not based on this assumption and is instead simply a way to correct for imbalances that do not result from any unlawful conduct, it is even less justifiable. This Court has repeatedly reaffirmed that “‘racial balancing’” by state actors is “‘patently unconstitutional,’” even when it supposedly springs from good intentions. And if that “racial balancing” is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color. A problem with doing so should be obvious: “Government action that classifies individuals on the basis of race is inherently suspect.”

This is a fundamental misunderstanding of what it is to be a minority. To use Britons in Argentina and Spaniards in Chile as examples of successful minorities, you would first have to ignore that these minorities were originally colonizers in their respective countries. However, the most disturbing aspect of this excerpt is the use of the NBA to claim “racial imbalances do not always disfavor minorities.”

Disparate-impact is an aspect of anti-discrimination law that claims practices are discriminatory if they have a disproportionate adverse effect. It is used typically in cases of housing and employment. If something is proven to have a disproportionate adverse effect then that practice is illegal. It was created to fight discriminatory practices, but is only applicable to protected classes (sex, race, religion, or country of origin). This is incredibly shortsighted of Thomas. Just because a professional athlete is an employee doesn’t automatically mean the disparate-impact clause is applicable. Not only is it incredible hard to win, but it is incredibly hard to prove. Showing disparate-impact on a protected class doesn’t automatically make something illegal because whoever put the policy in place can argue why it’s legitimate and necessary.

Alito, not wanting to be left out of the successful minority athlete discussion, added his take on the National Football league in his opinion:

Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities. (noting “there are 96 players (76 of whom are African-American) chosen in the first rounds of the 2009, 2010, and 2011 NFL drafts”). Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of” their race?

Often, those making arguments against the existence of racism in the United States bring the concept of the Black elite to the surface. Yes, there are successful black actors, but that doesn’t mean housing discrimination doesn’t exist. Yes there are successful black musicians, but that doesn’t mean poverty doesn’t disproportionately affect black communities. Yes, there are successful black athletes, but that doesn’t mean we should dismantle a law that helps provide millions of Americans with access to housing. To use the success of black Americans in sports to claim racial disparities do not matter ignores the internalization and institutionalization of the subordination of minorities in the United States. Systemic racism exists and the success of black athletes is not an argument against its existence. The use of this argument  by a Supreme Court justice to argue against the Fair House Act is a disgusting and desperate misinterpretation of the disparate-impact clause and the Constitution. Thankfully the Fair House Act stays intact, for now.