SCOTUS Getting Ready To Bring Back Segregated Housing, But Not In A Racist Way

Hi, what are you doing today? Working hard? Hardly working? If you are the rage pustule known as Antonin Scalia, the answer is "helping Texas bring back segregated housing because of states' rights and freedom and lots of other things but DEFINITELY NOT intentional racism."

This morning the U.S. Supreme Court is going to hear oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, and by "hear oral argument" I mean "gut the fair housing provisions that people have been living with for nearly 50 years." Sometimes it's hard to predict exactly what a court will do; this is not one of those times. Basically, it's a great time for you if you don't like seeing people with slightly different skin pigmentation when you're in the neighborhood where you live.


I'll lawsplain: When making discrimination claims there are generally two kinds -- intentional discrimination and disparate impact. Intentional discrimination is the kind where you have people standing in schoolhouse doorways or turning on the firehoses or maybe even one of those scenes you always have in movies where all the bad guys sit around a conference table and talk about their evil plans so the dumbest person in the crowd will be sure to understand. Disparate impact is the kind where there aren't any rules against giving out loans to black folks, it's just that somehow they never seem to actually get any loans, and why do you want to move to this neighborhood anyway when none of your people live around here?

Texas is saying the only kind of discrimination that should count from now on is the intentional kind, where you can show not only that the policy is hurting minorities, but also that there's something really, really bad in the hearts of the government officials that motivates the policy. Those of you who grew up around religious folks will recognize the general theme: all kinds of awfulness are allowed as long as you make sure to say that deep down in your heart you want only good things for those poor people, bless their hearts.

Sometime between now and June, the Supreme Court will publish the case and it will agree that from now on only intentional discrimination claims are allowed. From then on, as long as the mouth-breathers can keep from reading the stage directions, it's open season to discriminate. (Yes, that means there will still be some cases because in some parts of the country people who describe themselves as "David Duke without the baggage" get elected to public office.)


You mean other than the fact that these are terrible, terrible people who have been doing all kinds of horrible things for years now, and even if they order everyone to get gay-married tomorrow, it won't come close to making up for it? Okay, there's this: the court usually doesn't take a case unless there's a "split in the circuits." That's when two lower federal courts have decided an issue a different way -- you might remember this because it's why the court didn't take a marriage equality case the first time around. (More recently, a split emerged in the circuits, which is why they're now taking up the issue.)

In this case, there is no split in the circuits. Every federal appeals court that has decided the issue has said, "Duh, yes, of course you can show discrimination by disparate impact because how else would you ever show it?" Oh, also, this is the third time in a row the court has taken a case on disparate impact so for some reason they REALLY want to decide it, but the other two cases settled before the court could break decades of existing law. Now, maybe they just want to weigh in on settled law that isn't really controversial so they can say, "Hey, courts of appeals that have been deciding these cases the same way for close to 50 years! We just wanted to say you are awesomesauce and please keep up the good work, even though these cases have existed for so long that many of the judges who wrote those opinions have been dead for a really long time! If that's the case don't keep up the good work, because we don't want zombie judges who are trying to eat the brains of the other members of the court!"

Probably not though. Also, I should probably make a good zombie judge-improvement over what we have now joke here, but that seems a little obvious.


It means federal housing discrimination claims will be really difficult to bring -- impossible in many cases. Think about this case out of Texas: it basically comes down to "Hey, Dallas, it's really cool that you are taking federal money to build some low-income housing, but it's a little weird that all the low-income housing is in neighborhoods where there aren't any white folks." With disparate impact, that's enough to shift the burden over to the state to show that there's some legitimate reason that all the housing for poor folks is far away from where the white people live. (No, Texas, "I don't like to live near black people" is not a legitimate reason, and yes, I know you weren't going to use the phrase "black people.") Once this changes, to make this claim you'll also have to show that someone specifically intended to keep the housing segregated.

A few cases will probably still succeed: judging by the number of watermelon-patch-in-front-of-the-White-House email forwards everyone got from angry relatives in 2009, I'm guessing there are a few would-be George Wallaces using government email accounts to say "segregation forever." But this case will also contain a simple lesson for Texas and other segregation-lovin' places: get rid of the out and proud racists and you can still keep all the racist policies in effect.

That's the beauty of 2015 conservative America: words speak louder than actions. As long as we say the races are equal and we love gay people in our hearts and it's sad the way poor people have to live, we can go right ahead and keep the black folks in their ghettos and fire gay people for their immoral lifestyles and keep transferring money from the poor to the rich, at least until 2017 when President Mittens Romney promises us a chicken in every pot and a trampoline in every backyard.



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