by Jessica Sanchez, J.D., Housing Services Manager, Housing Rights Center of Michigan

Even after the Supreme Court’s landmark decision against the Texas Department of Housing in the summer of 2015, some Texas state leaders are still opposing low income housing in their communities.

Background

In Texas Dept. of Housing and Community Affairs vs. The Inclusive Communities Project, the Inclusive Communities Project, a group that advocates for more integration in Texas, argued that the state of Texas set up a system to allocate tax credits in such a way that low income housing was built almost exclusively in high poverty, minority neighborhoods, and that this practice had the effect of furthering racial segregation, rather than integration.

The case involved a question about the power of the Fair Housing Act, which made discrimination in housing illegal. It has been widely accepted for decades that the Act bars policies and practices that have a “disparate impact” or a disproportionate adverse impact on persons of a protected group.

Broadly, the case asked whether the law prohibits only intentional discrimination, or whether it also applies to race-neutral policies which still have the effect of harming minorities. Examples of the second type of discrimination include cases where banks have disproportionately provided minority borrowers with unfavorable subprime loans, as compared to non-minorities, and instances where zoning laws have the effect of blocking housing for low income minorities in certain areas. Similarly, in the case before the Court, Texas officials were not accused of intentional discrimination, but rather setting up a system that resulted in discrimination nonetheless.

The Court’s Decision

In a narrow 5-4 decision in June of 2015, the Court ruled that disparate impact claims can be brought under The Fair Housing Act, and that communities cannot steer low income housing supported by federal tax credits toward poorer and minority communities. Writing for the majority, Justice Kennedy acknowledged that the disparate impact standard has worked to combat systemic discrimination. “Much progress remains to be made in our Nation’s continuing struggle against racial isolation,” Kennedy wrote. “The Court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”

Justice Kennedy’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer. In one of the two dissents, Justice Thomas warned that the court was in danger of constructing “a scheme that parcels out legal privileges to individuals on the basis of skin color.”

The Obama administration had weighed in against Texas, noting that HUD, the federal agency charged with administering the Fair Housing Act, interprets the Act to allow disparate impact claims.

The Aftermath

Despite the Court’s ruling last summer, CityLab reported earlier this month that some leaders in the Texas state legislature are wielding their power to singlehandedly stop low income housing in the communities they represent. Thanks in-part to a 2001 state law, the system is set up in such a way that each Representative can effectively adjust the point system used by the Texas Department of Housing and Community Affairs to decide where and how to allot low income housing tax credits. There’s a point system and under it, legislators hold so many points that they have the ultimate decision over whether a low income housing deal passes or not.

CityLab describes how Kay Smith, who is running for the Texas legislature, is doing so in-part on a platform that includes a pledge to block all low income housing from her district. As of publication, Smith’s website reads “Kay is committed to stopping low income housing from entering your neighborhood.” Her site also shows a photo of what looks to be a dilapidated public housing building with the caption “Do you want this next to your house?”

This issue of low income housing and housing desegregation is not likely to go away any time soon, and it’s importance cannot be understated. Housing influences many facets in life and can either serve to deny or create opportunities for minorities. As stated by Sherrilyn Ifill, the NAACP Legal Defense Fund president and director-counsel “Housing is the most critical foundation for individuals and families seeking reassurances that the American Dream is within reach for everyone no matter what they happen to look like or wherever they live.”