Posted by
The federal Fair Housing Act makes it unlawful “[t]o refuse to sell
or rent after the making of a bona fide offer . . . or otherwise make
unavailable or deny, a dwelling to any person because of race, color,
religion, sex, familial status, or national origin.” Magner v. Gallagher
addresses the question of whether the FHA’s ban on racial
discrimination can be violated by someone who does not actually engage
in racial discrimination: Owners of rental properties in St. Paul,
Minnesota brought this suit claiming that the city’s enforcement of its
housing code — ensuring that rental units were safe and otherwise
habitable — violated the FHA because the repairs and maintenance
necessary to comply with the code would increase rents and price out
many of their African-American tenants.
Unable to show that the housing code intentionally discriminated
based on race, however, the owners argued — and the Eighth Circuit Court
of Appeals accepted — a “disparate impact” theory under which a
plaintiff need only show that an otherwise neutral practice has a
disproportionate effect on some racial group. Cato has now joined the
Pacific Legal Foundation, the Center for Equal Opportunity, and the
Competitive Enterprise Institute on an amicus brief
supporting the city’s request for Supreme Court review and arguing that
the statutory language and congressional intent of the FHA preclude
disparate impact claims.
We argue that extending such claims to the FHA “would deeply intrude
on the authority of state and local governments, and render much of
their housing policies illegal,” and “would inappropriately alter the
federal-state balance in far-reaching ways.” Indeed, disparate impact
claims would preclude all institutions subject to the FHA —
public and private — from implementing many practical policies. For
example, “because [the FHA] applies to financial institutions, banks and
mortgage companies would be pressured to provide loans to unqualified
applicants in order to avoid disparate impact liability. Similar actions
played a key role in triggering the mortgage crisis of 2007-2008.”
Moreover, the disparate impact doctrine directly conflicts with the
Fourteenth Amendment’s equal protection guarantees by forcing government
agencies “to engage in unconstitutional race-conscious decision making”
in order to avoid liability under the Act. In short, allowing disparate
impact claims under the FHA would both lead to adverse economic
consequences and create new constitutional tensions.
The Supreme Court will hear Magner v. Gallagher on Feb. 29.
No comments:
Post a Comment