Hey everybody, this is Bradley, your TA, and I'm going to do another Supreme Court explainer this week. We got some really strong positive feedback to the video I did two weeks ago on the same sex marriage case, so I thought it would be a good idea to do another video on a different subject. This week, we're going to do another hot-button social issue that hasn't been in the news quite as much as same sex marriage, but which is undoubtedly an important and controversial issue. Before we go ahead though, I want to add a quick coda to last week's video. The day after I filmed the video, the Supreme Court announced that it would indeed hear one of the same sex marriage cases. It looks like the Court will weigh in on the issue after all. I expect the oral arguments will occur in March or April and that the Court, in its usual dramatic fashion, will hand down a decision at the end of June. By the way, many of you responded with very thoughtful questions and comments on the forum and I tried to answer as many of the questions that were directed to me as possible. If you asked me a question, check the forum to see if I answered it. Okay. Now on to this week's topic. Today we're going to talk about racial discrimination in housing and a pending Supreme Court case that may completely transform the legal landscape in this area. It isn't, strictly speaking, a constitutional case, because it involves a question of statutory interpretation, or, in other words, how to best understand or construe a law that Congress passed. However, as we will see, the case is fraught with constitutional overtones, and may have some very important constitutional implications. The case is called Texas Department of Housing and Community Affairs versus Inclusive Communities Project. Heres what you need to know. In 1968, Congress passed a law called the Fair Housing Act. Which was the last major piece of Civil Rights legislation of the era. The Fair Housing Act basically prohibited racial discrimination in the area of housing. You know, buying, selling, renting, et cetera. Under the Fair Housing Act, you can't refuse to sell or rent a house or apartment or dwelling to someone because of their race. Now the problem is that in the housing context, intentional racial discrimination is extremely hard to prove. It's virtually impossible to look into a person's head to know for a fact that they were motivated by a discriminatory purpose. And nobody's going to candidly admit that they engaged in racial discrimination. So if you have a racist landlord or a property owner requiring a victim to prove that the person acted on the basis of a discriminatory purpose. Will often make it impossible to prevail in court even when as a matter of fact, the person did engage in discrimination. So the Fair Housing Act has been interpreted by basically every court to ever look at it to use a different sort of test. It's what's called the disparate impact standard. Instead of proving that somebody acted with a racially discriminatory purpose. It is enough to show that the patterns produced by a seller or landlord's behavior have the effect of disproportionately harming or burdening racial minorities. The standard is actually a bit more complicated than that, but that's the gist of it, that's what you need to know now. So on one hand, this test means that some people who did not intend to engage in racial discrimination may be found to have violated the law. But on the other hand, it makes it possible to catch all those people who do engage racial discrimination, but who do so in a subtle enough way that they won't be caught. So, this case does not involve a challenge to the constitutionality of the Fair Housing Act. Instead, the Texas Department of Housing and Community Affairs Argues that the Fair Housing Act actually does not adopt a desperate impact standard. They argue that it does indeed require a showing of deliberate racial discrimination. Again, this is different than a you know, straightforward constitutional challenge to the statute. Texas is merely making a claim about the correct way to read the statute. Now the thing is, as we said earlier. Texas's interpretation has been rejected by just about every court. Every lower court to ever consider the issue throughout the, you know, 45 plus years that the Fair Housing Act has been in existence. So why is Texas raising this argument if it's a certain loser? Well it isn't a certain loser, and the reason why tells us a lot about the current Supreme Court. Texas is bringing this argument, because in a series of decisions over the last decade or so. The Supreme Court has made perfectly clear that it is not a big fan of letting the government even take notice of race in order to combat racial inequalities that exist in society today. In 2003, the Court rules in a case called Gratz v Bollinger, that public universities, in that case it was the University of Michigan. That public universities cannot use race-based affirmative action programs that assign a fixed number of extra points to people for having certain minority backgrounds. Though in another case, it did uphold an affirmative action program that used race in a more inchoate, holistic manner. In the 2007 case, Parents Involved versus Seattle School District number 1, the Court struck down a voluntary desegregation/integration effort used by two school districts. In which students where individually assigned to schools based on race in order to achieve diversity and avoid racial isolation. In 2006, the Court limited the scope of a provision of the Voting Rights Act that had been used to ensure opportunities for racial minorities to elect candidates of their choice. And they did the same thing or a similar thing in another 2008 case. In 2009 the Court limited the ability of towns and cities to engage in race-conscious measures to avoid or remedy unintentional racial inequalities in public employment. And in 2013, in the case you may have heard of called Shelby County v Holder. The Court struck down the preclearance provision of the Voting Rights Act. Which had required states with long histories of racial discrimination to obtain preclearance from the Department of Justice or from a US District Court before implementing any changes to their voting laws. In order to make sure that those changes wouldn't have the intent or effect of making it more difficult for minorities to exercise the right to vote. Now in all of these cases, the government used race in order to, the government took notice of race in order to remedy past racial discrimination. And and, and achieve a greater level of diversity. So clearly the Roberts court is not a big fan of laws that let the government take notice of race. Even when it does so not for the purpose of imposing or perpetuating racial discrimination but to remedy or alleviate racial inequality. Now opponents of the Court's approach argue that it is very difficult very different rather, to use race in order to produce or exacerbate inequality. Such as the segregation laws that the Court struck down in Brown v Board of Education. And it, to use race in order to reduce racial inequality. They say those are, those are very different things and you can't compare them. However, opponents of these laws make a number of arguments. First, they say that because the Constitution only prohibits intentional racial discrimination. The government only has the corresponding power to prohibit intentional racial discrimination, not unintentional discrimination. Second, they also sometimes say that the disparate impact standard actually makes the government itself engage in discrimination by forcing it to pay attention to race. Now again, these are constitutional arguments, and the current case is a statutory case. But these constitutional arguments overhang the debate over the Fair Housing Act. To such a degree that it's almost impossible that these arguments won't somehow seep into the Court's consideration of the statute's meaning. Now interestingly, on two prior occasions, the Court chose to hear cases that raised very similar issues. Really the identical, the same issue. But both times the cases were settled before the Court could decide them. Now they were settled in large part because the Obama Administration and civil rights organizations made enormous efforts behind the scenes to prevent the Supreme Court from being able to consider the issue. They did this because they were afraid that the Court would use the opportunity to limit the scope of the Fair Housing Act, or even possibly to strike it down. This time, however, the administration wasn't able to keep the case from getting to the Supreme Court. Now during oral arguments, interestingly enough, Justice Scalia, who is known to disfavor broad governmental attempts to remedy racial inequality. Justice Scalia actually inspired some hope amongst supporters of the Fair Housing Act by suggesting that the law was clearly intended to use a disparate impact standard. Now, this made some people think that he might be willing to rule that it is okay to use disparate impact. However, those in the know were very worried by his words and understood them to have an ominous meaning. Justice Scalia probably does not think it is ever okay for the government to go after racial inequality unless it is the product of deliberate intentional racial discrimination. Now his willingness to read the, his willingness sorry, to read the desperate impact standards into the Fair Housing Act may signal that he's actually ready to strike down the whole statute on constitutional grounds. Which is the outcome that the civil rights community most fears. And you know, in light of the courts recent record in this area, I would think that they have good reason to be worried. Now, the final question is, what would Professor Amar think of this case? Well, he would probably agree that as a statutory matter, that the Fair Housing Act uses disparate, a, it uses a disparate impact standard. So the real question would be whether he thinks that the Constitution permits the use of disparate impact by Congress to remedy racial discrimination. And I think his answer would be an unequivocal yes. That the Constitution ab, absolutely does allow Congress to pass civil rights laws that use a disparate impact standard. Section 5 of the 14th Amendment, which prohibits racial discrimination, says that the Congress shall have power to enforce by appropriate legislation the provisions of this article. The word appropriate, is very similar to the words, necessary and proper, in Article 1, Section 8, in a clause that gives Congress broad power to pass laws that are necessary and proper to effectuating its other powers. In fact, appropriate, the word, appropriate, sounds even more permissive than either necessary or proper, as a strict textual, logical matter. Moreover, the word, appropriate, clearly mirrors the use of identical language in the famous Supreme Court opinion, McCullough v Maryland. Which was decided a few decades before the 14th Amendment was enacted, which was well known to the, the people, the Congressman who wrote the 14 Amendment. And which those of you who took Professor Amar's class on America's written Constitution should recognize. In McCullough, the court upheld Congress' power to pass a national bank, to create a national bank. And it struck down a tax that the state of Maryland levied on the bank. Now with the court held in McCullough, the Congress enjoys very broad, sweeping authority to use whatever means are effective for bringing about the ends that it is empowered to pursue. So long as those means don't violate explicit or implicit Constitutional prohibitions. Now Professor Amar, would probably say that Section 5 of the 14th Amendment, was written by drafters who were familiar with the McCullough opinion. Who were Congressman themselves and who wanted to give themselves some of that broad, sweeping power to legislate in order to advance and protect the rights of racial minorities. He would say that if Congress' power to enforce and protect civil rights, that Congress' power to enforce and protect civil rights should be read in a broad, generous McCullough-like spirit, not in a narrow, stingy, restrictive spirit. The Constitution may not in it of itself prohibit disparate impact. It may, it may only prohibit intentional racial discrimination on the state's part. But using the disparate impact standard in legislation and civil rights laws. Allows Congress to more effectively target the intentional racial discrimination that does violate the Constitution and which Congress is absolutely in power to eradicate. For Professor Amar, this fact would be good enough. Because disparate impact is a useful, effective way to combat a problem, i.e, racial discrimination in housing. Congress is therefore empowered to combat to combat racial discrimination in housing and to enact civil rights laws that use the disparate impact standard and that such laws are absolutely constitutional. Well, that's all for today. I am sure that you all are going to have a wide variety of reactions to this issue and I encourage you to share your thoughts and to debate on the discussion forum online. Until next time, this has been Bradley. Thanks for tuning in and for participating in the course so far. I hope you continue to enjoy Professor Amar's class. [MUSIC]
