The Federalist - Thursday December 31, 2015
by Georgi Boorman
President Obama’s Department of Housing and Urban Development is plotting a power grab under a new rule that came into effect this past July, and we have the Supreme Court’s recent ruling on disparate impact in housing policy to thank for it.
HUD intends to insert itself into local zoning efforts through the AFFH (Affirmatively Furthering Fair Housing) program to push affirmative action in housing policy, directing HUD grant recipients to “affirmatively further the Act’s goals of promoting fair housing and equal opportunity.”
But former elected officials Ken Blackwell and Rick Manning argue the “AFFH rule seeks to radically reinvent local zoning laws in the United States – reengineering America’s neighborhoods based on racial and ethnic quotas. Under the rule’s assessment tool, local governments are required to ‘identify neighborhoods or areas in the jurisdiction and region where racial/ethnic groups are segregated.’”
How Neutral Policies Are ‘Actually’ Discriminatory
To understand how HUD arrived at its new rule, we must revisit the SCOTUS ruling from the spring, Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., which essentially would decide whether local housing authorities are liable for discrimination claims if the racial composition of local neighborhoods displeases bureaucrats (also known as “disparate impact”).
For example, let’s say that a certain housing policy allows all people with equal qualifications an opportunity to live in a single-family house. Despite these universal standards for applicants, if it nevertheless leads to white people aggregating in suburban neighborhoods made up of single-family homes, and Hispanics and blacks aggregating in low-income apartments, the theory goes that this “disparate impact” can constitute racial discrimination.
The Supreme Court ruled in a 5-4 decision that disparate impact claims, which have been allowed under the Civil Rights Act, can now be brought under the Fair Housing Act. This means local governments are now liable for disparate impact claims, regardless of whether their policies were meant to discriminate against protected classes like race or age. The court affirmed HUD’s long-held interpretation of the Civil Rights Act, and effectively permits HUD to intervene in cases of “a facially neutral practice that has a discriminatory effect.”
How Big Data Serves Big Government
Although the Inclusive Communities majority opinion expressly warns against using mere statistical disparities to shape housing policy—“Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision”—it appears that HUD’s new approach takes that line more as a wink and a nod, not a wag of the finger. Their new assessment tool places a heavy emphasis on describing patterns of “segregation” and extremely detailed demographic analysis aimed at highlighting R/ECAP (Racially or Ethnically Concentrated Areas of Poverty), especially regarding access to government services.
HUD clearly aims to glean mountains of demographic data, and you can bet your back yard that it won’t go to waste in the hands of the social justice bureaucracy. That data will be presented as evidence of the disparate impact of local housing policies, opening the door to federal intervention.
This is neither the first nor the last time that a Supreme Court ruling, based on a warped interpretation of existing laws, has permitted the iron fist of social justice to clench yet another domain of our local and private lives. The SCOTUS ruling and HUD’s new rule aren’t causally linked per se, but the Inclusive Communities ruling effectively enables a witch hunt led by zealous social justice warriors in the federal bureaucracy.
The attention this decision, as well as previous decisions predicated on disparate impact theory, deserves is well past due, especially given this effort by HUD at social engineering. The Inclusive Communities ruling, like the gay marriage ruling, exemplifies how the radical Left will stop at nothing to manipulate language into doing their bidding.
Torture Language Until It Serves Your Purposes
This is where “tortured language,” to borrow a term from Obamacare architect Jonathan Gruber, comes into play. The language of this disparate impact ruling, as with its predecessors, ignores and obscures the very basic acknowledgement that discrimination is a conscious effort, a word that stands for “the act of discriminating.” One cannot unconsciously discriminate, even though we have unconscious biases that influence our behavior. Discrimination is an act of the consciousness, a verb like discretion or discernment.
The theory of disparate impact itself is clearly a conflation of cause and effect, using choice bits of language, such as “otherwise adversely affect,” from the Civil Rights Act and AFFHA as cover. Disparate impact, literally meaning impact that is unequal, is an effect a policy can have, not an action taken by a conscious individual. Actions can be taken with intent to discriminate, but consequences themselves cannot constitute discrimination.
Of course, this does not mean no disparate impact claim has some grounds for a charge of racial discrimination. If the policy was written with intent to adversely impact minorities, then the disparate impact was caused by a discriminating act. It is for that act the parties responsible can be held to account under the law.
Conflating Cause and Effect
The Equal Employment Opportunity Commission (EEOC), however, which has been bringing disparate impact suits under the Civil Rights Act for decades without turning up sinister racist individuals, and at a loss for a definable entity to indict for discrimination, would argue that the discrimination can lie not just with any individual parties with intent to discriminate, but with the “institution.”
The same strain of reasoning was applied in the Inclusive Communities decision, meaning that the Texas Department of Housing and Community Affairs was stuck with the burden of trying to prove a negative—if the discrimination is in the institution (the department) and not any individuals driving or applying the policy, then how do you prove your institution isn’t discriminating against minorities?
The “institutional discrimination” line is really just a different way of saying disparate impact and discrimination, cause and effect, are the same thing. Who defines “institution?” Who determines whether an institution is racist? If there are no intending parties, the only indicator one is left with is (you guessed it): disparate impact.
Even a simple grammatical assessment reveals the twisted nature of the language couching disparate impact. A verb cannot also be its direct object, as the Supreme Court has set up disparate impact (an object) and discrimination (a verb—to discriminate) to be; to assert this is a denial of reality and basic syntax. It is a mere staging of language, just sensical enough, at first glance, to help suspend disbelief.
So this is really circular reasoning, a rubber band stretched tight to make it appear a single line from point A to point B, which brings us back to the initial assertion that disparate impact is discrimination. For the Left, disparate impact has to be discrimination, because there are no definable intelligent parties on which to place intent. If discrimination is to be involved at all, if the suit is even to be brought to court, the language of disparate impact must look the part of a racist-homophobe-ageist-sexist.
From Torturing Language to Torturing Law
Justice Clarence Thomas points out in his dissent of Inclusive Communities that the wording in Title VII of the Civil Rights Act specifies that certain acts are unlawful “because of” (protected classes):
Section 2000e–2(a)(2) does not make unlawful all employment decisions that ‘limit, segregate, or classify . . . employees . . . in any way which would . . . otherwise adversely affect [an individual’s] status as an employee,’ but those that ‘otherwise adversely affect [an individual’s] status as an employee, because ofsuch individual’s race, color, religion, sex, or national origin.’ (emphasis added)
The phrase “adversely affect” cannot be isolated from the prepositional phrase “because of.” To rule disparate impact itself constitutes unlawful discrimination is to strike “because of” from the text of the law, much like Justice Roberts did with “established by the states” in the Affordable Care Act.
It is indeed tortured language. The progressive regulators and the leftists in the courts have “Grubered” the Civil Rights Act.
Perhaps the greater irony is that EEOC and HUD base their litigation practices on the supposed “purpose” of the law, not the actual language. In other words, they take intent into account when writing their guidelines, even if they are wrong about the intent of the law, while maintaining that individual intent has no importance in determining whether a business is discriminating against (i.e. disparately impacting) protected classes. Intent matters to them when interpreting the law, but not when interpreting its effects.
The federal regulatory state preys on and bullies lower levels of government because the precedent for how we interpret and follow (or, more likely, ignore and obfuscate) laws has been set: just as the Supreme Court read into and manipulated language from the Civil Rights Act, so, too, HUD reads into and manipulates the court’s decision.
The Inclusive Communities ruling is just one example of the great manipulation of the Left, and how blotting out a few phrases, shifting the meaning of a few words, beget still more reimagined rules and new tools to power the federal social justice machine. Words serve their ends until they don’t; intent serves their purpose until it gets in the way.
The Supreme Court’s justification of disparate impact leaves us wondering what laws will they manipulate next, and what new federal powers will arise from them?
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