THE BLOG
01/21/2015 08:33 am ET Updated Mar 23, 2015

Will the Supreme Court Demolish an Iconic Civil Rights Law?

Drew Angerer via Getty Images

We began this week by celebrating the 85th anniversary of Martin Luther King Jr.'s birth, but today the U.S. Supreme Court will hear arguments in an important case that could knock down a crucial racial and economic pillar of justice built during the civil rights movement.

The nine justices will consider the extent to which the Fair Housing Act of 1968 remains a vital tool in combating the discrimination in housing and lending that continues to plague our country. In an added bit of irony, the passage of that act was itself spurred by the assassination of the person whose birth we just celebrated and the civil unrest that King's murder sparked. Too often we forget that Dr. King didn't just fight for the political equality of all African-Americans, he fought for his brothers and sisters' economic equality as well.

It was an overriding concern of his captured perfectly in the Oscar-nominated film, "Selma." Commenting on the ending of segregation in public accommodations, King asked, "[W]hat good does it do to sit at the counter when you cannot afford a hamburger." The same could be said today.

Although it has repeatedly been suggested that Martin Luther King Jr.'s concern about economic equality arose late in his career, the theme of the importance of economic justice runs throughout his work. After all, the famous march at which King delivered his historic "I Have a Dream Speech" was titled the "March for Freedom and Jobs" (emphasis added). Referring to the time that had elapsed since the passage of the Emancipation Proclamation, King remarked that, "One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity."

As a nation, we have done a good job of lauding the progress made in eliminating the de jure segregation of public accommodations. It is always easy to celebrate success, particularly when by so doing we can assert our superiority over the benighted people who used brute force and intimidation to maintain that segregation. But we are less enthusiastic about speaking about continuing economic inequality because, in part, that implicates us and our continuing failure to address the structural causes of poverty. Or maybe it's because we believe that inequality reflects the relative worth of groups of people.

Wealth inequality has exploded over the past several decades, and the gap between white families and families of color have only increased at the same time that unemployment rates for people of color, particularly African-Americans, remains stubbornly close to twice the rate of whites.

Despite the persistence and growth of racial and ethnic poverty inequality, some measures were taken to address underlying causes. In the wake of extensive and violent civic unrest in 1967, President Lyndon B. Johnson created the Kerner Commission to investigate the cause of the unrest. After conducting an intensive investigation, the commission concluded that the causes included "pervasive discrimination and segregation in employment, education and housing, which have resulted in the continuing exclusion of great numbers of Negroes from the benefits of economic progress."

Then, following the assassination of Martin Luther King, President Johnson successfully urged the expedited passage of the Fair Housing Act, which was signed before King's funeral. From the outset, the legislation was addressed to the problem of residential segregation that was seen as the country's major domestic problem. Recognizing the complex causes of segregation, the act was consistently addressed at the causes of discrimination, regardless of the intent of the person creating the policy.

In the years since its initial passage, Congress has rejected efforts to limit the scope of conduct prohibited to instances of intentional efforts to discriminate and, recognizing that results matter, every court of appeals in the nation has held that discriminatory effects could give rise to a cause of action along with intentional discriminatory treatment. All federal agencies charged with enforcing fair housing and fair lending laws have taken the same approach.

But that's all in jeopardy now.

Despite the unanimity of Congress, the courts, and enforcement agencies, the Supreme Court has agreed to consider whether the time-tested method of looking at the effects of policies and practices should continue to be used going forward.

Hidden in the midst of a complicated discussion of legal issues about burdens of proof is a straightforward question: Whether policies and practices that are not necessary to further legitimate business interests should be permitted to be used even if they damage members of classes of people protected by the Fair Housing Act? The court's answer to this question will likely have a significant impact on the country's ability to assure fairness and equality in housing.

The country owes an enormous debt to Martin Luther King Jr. and the hundreds of thousands of people who fought to pass laws that would provide hope for fairness and justice to all Americans. Because of their effort, the country has the chance of achieving the lofty goals embodied in the country's constitution and laws.

The dedication of heroes past and present has made it possible for the country to begin to realize finally its full potential for greatness. The declaration of a national holiday for Dr. Martin Luther King is scant repayment for that debt. We owe Dr. King and so many others a meaningful answer to his question about the ability of Americans to afford their most basic needs.

Unfortunately the Supreme Court may well answer that question in a way that will only make it harder for people to put a roof over their heads.

Dennis Parker is the director of the ACLU's Racial Justice Program.