One Supreme Court decision flying under the radar at the moment is Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project. Yet the implications of this case are every bit as important as anything else before the nation’s highest court being decided this month, including the constitutionality of federal exchange subsidies under the health care law.
The Texas case involves the non-profit Inclusive Communities Project, which contends that low income housing tax credits are being disproportionately granted to developments within minority neighborhoods and denied to white neighborhoods, supposedly perpetuating segregation in violation of the Act.
This puts on trial the use of so-called disparate impact analysis under the Fair Housing Act.
Disparate impact is “a legal doctrine under the Fair Housing Act which means that a policy or practice may be considered discriminatory if it has a disproportionate ‘adverse impact’ against any group based on race, national origin, color, religion, sex, familial status, or disability,” according to the Fair Housing Alliance.
But, argues Texas, federal rules requiring disparate impact analysis violate the equal protection of the laws under the 14th Amendment by requiring “a State’s qualified allocation plan to give preference to projects in low-income areas — and those areas will be disproportionately populated by racial minorities.”
Such racial preferences, then, require states to discriminate on the basis of race in allocating the tax credits.
Should the Supreme Court reject the use of disparate impact under the Fair Housing Act as unconstitutional, its effects will be far-reaching into other areas of housing law.
For example, an adverse ruling by the Supreme Court would surely ensnare the “Affirmatively Furthering Fair Housing” rule and the “Affirmatively Furthering Fair Housing Assessment Tool,” which, when finalized, will empower the Department of Housing and Urban Development (HUD) to condition eligibility for community development block grants on redrawing zoning maps to achieve racial and income integration.
In 2012, HUD dispersed about $3.8 billion of these grants to almost 1,200 municipalities. Conditioning those grants on rezoning will generate obvious political outcomes, namely, to turn what were once Republican districts — which tend to be higher income and white not because of racism but rather economics and regional demographics — into marginal, purple districts under the guise of providing “fair housing.”
In preparation for implementing the rule, HUD has released template racial rezoning maps and data tables to be used in each community development block grant recipient area.
The tool’s worksheet orders the assessing bureaucrat using the maps and data to “identify neighborhoods or areas in the jurisdiction and region where racial/ethnic groups are segregated and indicate the predominant groups for each.”
Additionally, the bureaucrat must identify the extent the following factors “contribut[e] to segregated housing patterns” including “Land use and zoning laws, such as minimum lot sizes, limits on multi-unit properties, height limits, or bedroom-number limits as well as requirements for special use permits; Occupancy restrictions; Residential real estate steering; Patterns of community opposition; Economic pressures, such as increased rents or land and development costs; Major private investments; Municipal or State services and amenities; and Foreclosure patterns.”
According to HUD, the tool is “for use by each program participant to evaluate fair housing choice in its jurisdiction, to identify barriers to fair housing choice at the local and regional levels, and to set and prioritize fair housing goals to overcome such barriers and advance fair housing choice.”
Why, that sounds a lot like the very type of disparate impact analysis now in the Supreme Court’s crosshairs.
In the meantime, U.S. Rep. Paul Gosar (R-Ariz.) has offered an amendment to the Transportation and HUD appropriations bill that would bar the department from using any funds to carry out the rules.
Last year, the House passed a similar amendment offered by Gosar in a 219 to 207 vote.
As it stands, floor action on Gosar’s latest amendment is imminent. And since members cannot predict how the Supreme Court will rule, action in favor of the amendment is now that much more important.
Americans for Limited Government President Rick Manning issued the following statement urging support, “Racial quotas are unconstitutional, and yet that is exactly what HUD will use to redraw every neighborhood in America. This has nothing to do with housing discrimination, which has been illegal since the 1960s. Instead ‘Affirmatively Furthering Fair Housing’ is based on a utopian goal of creating evenly distributed neighborhoods based on racial composition and income.”
Manning concluded, “The House must take a stand to preserve local zoning rights.” Indeed, who gets to draw the map of every neighborhood in America may be at stake. Will it be local communities, or faceless bureaucrats in Washington, D.C.? It’s up to the House to now decide.
Robert Romano is the senior editor of Americans for Limited Government.