On June 25, 2015, the Supreme Court ruled in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. that so-called “disparate-impact claims“ can be brought under Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act. Such claims challenge housing, employment, or other practices that have a disproportionately negative impact on a protected class of people.
This ruling is a victory for the century-old fight against oppressive institutional racism in the US because it protects minority communities against policies and organizational practices that may not seem discriminatory, but end up negatively impacting a federally protected class (which, by the way, still does not include the LGTBQ community, so get on that Congress!).
It would be easy to champion the liberal cause here by ripping into the embarrassing argument made by Justice Clarence Thomas, who wrote in his dissent that the racial makeup of the National Basketball Association is evidence that “racial imbalances do not always disfavor minorities.”
Similarly, I could call out the legal double standard of conservative statutory interpretation within the dissent of Justice Samuel Alito, who reads into the FHA the presence of a strict adherence to willful intent (it’s not there; see section 804(a) and 805(a) of the FHA).
But in an effort to transcend liberal and conservative boilerplate sentiments, explore my own skepticism of this case, and provide something a little closer to the truth, I’ll attempt my best “humanist shakedown” of this Supreme Court case.
Texas’s Housing Tax Credits (HTC) program is essentially a federal government subsidy to private organizations (through state departments) that are willing to develop affordable housing for low-income individuals. The plaintiffs in this case, the Inclusive Communities Project (ICP), claim that the Texas Department of Housing and Community Affairs is to blame for “continued segregated housing patterns” in the inner cities by focusing the HTC program funds in low-income areas rather than in richer suburban areas.
Here is where my logical dilemma comes into play. It seems the reasoning is to blame the government for subsidizing affordable housing in poor, black communities instead of richer, whiter high-resource communities, a policy which supposedly perpetuates the cycle of poor black people in poor black communities. However, this reasoning is ultimately problematic and leads me to ask: Is the best argument made on racial grounds or economic grounds? Is there even a distinguishable difference between the two anymore?
The argument made by ICP is of course one based upon racial grounds because race is a federally protected class; the economic class known as the poor is not. However, their argument can be seen as an argument against economic segregation—or its more popular term, “free market capitalism.” Leave out the racial signifiers and just like that we’re talking about integrating the rich and the poor. ICP’s premise is that blacks, being low-income, are forced to remain in low-income areas because of the HTC program’s focus, thus denying them the unique resources (think capital) located only in richer suburban areas—namely functioning schools, safer communities, better health services—that enable social mobility.
So, why not relocate the economy’s capital instead of relocating society’s races or maybe a mixture of the two?
I have a few hunches as to why none of that is happening. Spoiler Alert! It’s the result of the free market. But going deeper, let’s first understand why the HTC program focuses on low-income areas. It is because building subsidized or “affordable housing” in richer suburban areas is not an economically sound or profit-maximizing strategy for any private organization. The same plot of land upon which cheaper, low-return housing is being built can be used to build luxury homes that generate a high return. The forgone profits from the high-return homes are what economists call opportunity cost. And even if a nonprofit funded by a benevolent philanthropist is willing to eat that opportunity cost, these low-income individuals will be priced out of every other aspect of their lives—from food and shopping to transportation and entertainment—because prices are boosted in order to extract from the richer surrounding market. Not to mention, the potential rebirth of “white flight,” whereby rich households select away from public schools toward private schools and eventually towards new communities, all but ensuring their wealth goes with them.
The origin of misguided yet well-intentioned arguments such as the ICP’s are the result of the increasing and regrettable synonymy of race and economic class—in this case, black becoming synonymous with low-income. Texas has serious issues (specifically with LGTBQ rights, abortion, and capital punishment) and housing discrimination is certainly present in the US today, but the issues within this HTC program are more about economics than race. What we are seeing in poor urban areas is a first-world poverty trap, worsened by President Clinton’s Welfare Reform of 1996 and managed through instances of institutional racism, primarily in the state’s penal apparatus (whereby 70 percent of young black males will be imprisoned at some point in their lives). If this poverty trap is confused in every instance for institutional racism, we will be applying racial solutions for economic issues (as I argue is the case here) and vice-versa in a way that will only stymie social progress and breed tension.
The Supreme Court’s ruling on the existence of disparate impact liability in the Fair Housing Act will have resounding positive implications for how our government addresses adversely affected communities across the country. Systemic racism is real and those who choose to be “color-blind” are shielding themselves from the truth, thus maintaining a problematic status quo. Nevertheless, I find myself hard-pressed to implicate Texas’s HTC program for simply attempting to house the poor in their own communities instead of leading them into richer communities. Ultimately, capital needs to come to low-income areas not the other way around. This is how we uphold humanist value in every man and woman, by giving them what they need to lead fulfilling lives in their own communities.