The SCOTUS Fair Housing Act Decision a Welcome & Needed Win Following Racial Tragedy

06/30/2015 03:50 pm ET | Updated Jun 29, 2016

It was in the wake of the murder of Martin Luther King, Jr. in April 1968 that President Lyndon Johnson signed into law a major pillar of U.S. civil rights legislation, the Fair Housing Act.

Nearly 50 years later, it is in the wake of the murders of nine Black worshippers in Charleston, South Carolina at the hands of a reported white supremacist that the Supreme Court recently ruled to uphold it.

The 5-4 decision last week in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is both a surprising and necessary win on the road toward racial justice.

The Court narrowly decided that the Fair Housing Act (FHA) not only bans overt, intentional forms of discrimination, but also protects people against policies that seem race-neutral but nevertheless produce racially disparate outcomes.

Overt racial discrimination is fairly easy to recognize. Consider the images of and manifestos by Dylann Roof, the confessed killer of the nine Charleston worshippers that have emerged in recent days. However, many forms of discrimination are far more subtle, sometimes unintentional and, thus, much harder to recognize.

Consider, for instance, bans that some condominium associations have on a variety of objects placed in hallways and unit doors. While this type of policy seems to be neutral and equally applicable to all residents, its effects could have a disproportionately negative impact, albeit a likely unintentional one.

One instance is the common practice among observant Jewish residents to post a mezuzah, typically held inside a small decorative case, on a door. In other words, condo policies with such bans are likely in violation of the Fair Housing Act due to the disparate impact standard.

While The Roberts' Court has not been sympathetic to the idea that discrimination often results from unconscious, subtle, or otherwise unintentional practices by either individuals or institutions, it is the extant body of social science demonstrating unconscious bias that Justice Anthony Kennedy cited in his majority opinion.

Specifically, while there is debate among the social science community regarding the extent that some forms of unconscious bias result in discrimination, there is no debate that we tend to favor individuals with whom we share a group membership or identity. That affinity is preferred over others with whom we have no common affiliation.

People tend to trust, cooperate with, allocate more resources to, and engender greater empathy toward, people who are like us--our ingroup members. That occurs even when the basis for similarity is remarkably meaningless and arbitrary.

In some circumstances, expressions of ingroup favoritism are not only expected, but promoted.

Consider the recent parades in celebration of national sports championships won by the NHL's Chicago Blackhawks in hockey and the NBA's Golden State Warriors in basketball. No one is surprised to find complete strangers who happen to be fans of these teams treating one another with far more generosity and kindness than is typically afforded to strangers, especially in the midst of huge crowds.

This tendency is also what universities draw upon when they seek to foster connections between current students in need of jobs and internships and alumni who may have access to them. These and many other forms of ingroup favoritism are considered mostly benign, normal, and justifiable.

Favoritism toward similar others has been demonstrated in such a multitude of different cultures, groups, nations, and contexts that it is now considered a basic component of human functioning. Indeed, it is this "positive" prejudice, not animus toward dissimilar others, that yields so much, if not the preponderance of, everyday discrimination in society, from preferential hiring to lending in credit markets.

The problem, of course, is that ingroup favoritism takes on an unwelcome dimension when it happens to manifest, at least in part, on the basis of race. Or, as is perhaps even more likely, on the basis of a characteristic that is highly correlated with race, such as educational background or occupation.

Given our largely racially segregated social networks, it is no surprise that racial discrimination in access to housing, employment, and other societal goods can easily (and unintentionally) emerge from these everyday, normal practices of ingroup favoritism.

The recent incident in McKinney, Texas when videos showed black teenagers assaulted by police officers at a pool party, underscores the need for a strong FHA that includes the disparate impact discrimination standard. Like many places in the U.S., parts of McKinney continue to be largely racially segregated. Indeed, McKinney is the type of Texas community that the Inclusive Communities Project-- the respondents in this very case-- is attempting to integrate.

One clear cause of the now-shocking incident between the black teenagers and law enforcement is the assumption that the black teens did not belong there. Indeed, one white resident of the community where the pool is located is reported to have said to one of the black teenagers, "Go back to your Section 8 home."

It is this type of racial segregation that the disparate impact standard is best equipped to detect and, ultimately disrupt. That will occur by examining the outcomes of housing practices for evidence of racial bias, rather than relying on the intentions of the policies themselves, which may be racially neutral on the surface.

Despite clear evidence of the persistence of racial stereotypes in society, and what have become all too frequent incidents of violence toward black Americans, much has changed in the United States since 1968. Only the most cynical would deny that Americans have overwhelmingly embraced the ideals of racial egalitarianism since this time.

Even a society without negative racial stereotypes or racial animus, however, would require a disparate impact standard to protect against the emergence of unequal outcomes due to ingroup favoritism.

In other words, it is not because we are a country of duplicitous bigots that we need the disparate impact standard. But, rather, it is because we are a country of human beings.