Tag Archives: disparate impact

Parsing the disparate-impact ruling

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Fair Housing Law cognoscenti will be happy to learn of new journal article by Robert G. Schwemm, acknowledged to be a principal academic authority in these matters. In a Columbia Law Review sidebar, Schwemm takes on the recent U.S. Supreme Court ruling on disparate impact and sorts through the ramifications, “What’s new and what’s not.”

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Even for non-cognoscenti this article can be useful, given that it’s a fairly breezy (for a law journal) way of catching up with fair housing developments.

The court’s opinion – which essentially upheld the longstanding theory that discrimination is legally actionable by virtue of its effect, not merely intent, was celebrated by fair housing advocates all over the country. The impact on Vermont remains to be seen, however, because disparate-impact arguments typically rely on statistics, and Vermont communities are so small that statistics are not always meaningful.

Still, Schwemm ‘s article makes several points worth Vermonters’ notice, among them:

–the established practices, since the mid ‘70s, of using disparate impact to challenge “exclusionary zoning and other land-use restrictions by local governments that blocked or limited housing proposals of particular value to racial minorities or persons with disabilities.”

–the additional protected classes that Vermont (and many other states) added in their own fair housing laws are specifically preserved under the federal Fair Housing Act. Those additional categories in Vermont include receipt of public assistance (e.g. Section 8), sexual orientation and gender identity. The implication is that, because of the Supreme Court decision, disparate-impact claims could be made successfully for people in these, state-specific categories as well. Assuming, that is, that the plaintiff could get the necessary numbers in order.

 

‘Heated’ conflict over affordable housing?

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A provocative op-ed in the Times last week by Thomas Edsall has ruffled a few feathers. He took on the question of whether public housing subsidies should be directed to impoverished neighborhoods or to upscale areas.

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Pushing the former is something called the “poverty housing industry,” which he called “a de facto alliance of multimillion-dollar nonprofit housing companies, city politicians, state and local housing authorities” and others. Pushing the latter are those who advocate integration of poor minorities in more well-to-do neighborhoods. The result, Edsall wrote, is a heated conflict “within the affordable-housing community.”

He argued that some large nonprofit development companies benefit by confining their low-income housing developments to low-income areas. Bolstering the critique of that stance by the integrationists are three things: academic research that shows benefits to low-income children whose families are resettled in low-poverty areas; the Supreme Court decision upholding disparate impact; and HUD’s AFFH rule, which among other things calls for breaking up patterns of historic residential segregation.

A critical response to Edsall’s piece was soon in coming. A blog post on the website of the giant law firm Nixon Peabody took him to task for various alleged distortions and oversimplifications. Among other things, Edsall was said to have overlooked the obstacles to developing affordable housing in affluent areas – the high cost of land, the resistance by residents, and so on.

It’s also worth noting that Edsall, in citing the Supreme Court decision, did not mention the caveat in Justice Anthony Kennedy’s opinion that left the door open to continuing to invest in poor neighborhoods:

“It would be paradoxical to construe the Fair Housing Act to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable,” Kennedy wrote, adding:

“The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether choose to rejuvenate a city core or to promote new low-income housing in suburban communities.”

What does all this have to do with Vermont? Edsall’s primary targets are big, national nonprofits working in impoverished sections of major U.S. cities. His critique doesn’t seem to apply much in this rural state, although socioeconomic integration does present a challenge here.

Comments, anyone?