It was reported recently that the current Administration is trying to eliminate so-called disparate impact cases under the Fair Housing Act. The press reported it as forcing plaintiffs to prove intent to discriminate. Actually it would make it all but impossible to prove housing discrimination in any form. So, even though the regulations haven’t been finalized, I’d like to get out ahead of it.
Think about the problem from the point of view of an attorney. A client tells you he or she has been discriminated against. What evidence do you look for?
You can look for an admission – “I refuse to give you a job or sell you a house or rent you an apartment because you are Black, brown, or yellow, or because you pray to the wrong God.” There are occasions when people will scream out such language. Maybe an email. It’s rarer on paper. But their lawyers have told them to shut up with the racist language because it will open them to litigation. So you keep your eyes and ears open but don’t expect such gifts to land in your legal file.
The alternative is circumstantial evidence. Circumstantial evidence is a pretty ordinary method of proving things whether in a criminal case, racial discrimination case or many others. Discrimination is easily defined, and Congress has legislated that there is discrimination where the impact on people of one race, sex or religion is very different from those of another race, sex or religion and there is no decent justification for that behavior.
The late Justice John Paul Stevens, concurring in the case that first demanded evidence of intent, made it clear:
“Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.”
And he continued:
“the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.”
Because, to put it clearly, evidence of unjustified impact is evidence of intention. So what the Administration and its conservative supporters are saying is that there shouldn’t be a way to prove a violation of the Fair Housing Act or the 14th Amendment Equal Protection Clause. Discrimination happens, get over it. Just another example of people with the power to act with impunity, injuring others without fear of paying the price.
Put it another way, prejudiced judges and administrators will have a fig leaf – you couldn’t prove misbehavior because all you have is consequential evidence. And, with the exception of Kennedy and occasionally O’Connor, the conservative justices on the Rehnquist and Roberts Courts have made the most of that fig leaf, blind to discrimination in front of their faces.
There are people who believe they have no stake in the welfare of African-Americans. But they do. When communities decay, they affect us all. They bring down wages, cost us for the services needed because of the problems in those communities, and cost us the benefits that people in functional communities provide the rest of us – the doctors, scientists, teachers, people in all the professions that serve us all. There is a huge cost in substituting disfunctional for functional communities. Undermining people’s ability to take care of themselves and their families undermines the ways communities work, and we all pay the cost.
 Chris Arnold, A New Trump Rule Could Weaken A Civil Rights Era Housing Discrimination Law, All Things Considered, July 31, 2019, 5:20 PM, available at https://www.npr.org/2019/07/31/747006108/a-new-trump-rule-could-weaken-a-civil-rights-era-housing-discrimination-law.
 Washington v. Davis, 426 U.S. 229, 253, 254 (1976) (Stevens, J., concurring).