Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., decided on June 25, 2015, understandably received much less attention than the Supreme Court’s same-sex marriage decision the following day. But Inclusive Communities is an important case nonetheless. (Disclosure: I assisted two New York Law School colleagues who, together with students, wrote an amicus brief broadly supporting the result the Court reached.)
The question the case addressed was whether the Fair Housing Act forbids both action that deliberately discriminates based on race, and also action that has a racially discriminatory effect. Deliberate discrimination in this context is called “disparate treatment”; action with racially discriminatory effects, but no proven discriminatory purpose, is described as having a “disparate impact.” As lawyers would put it, then, the question was whether the Fair Housing Act creates liability not only for “disparate treatment” but also for “disparate impact.”
It’s been settled since Griggs v. Duke Power Co., decided by the Supreme Court in 1971, that the following language of the Civil Rights Act of 1964 forbade both disparate treatment and disparate impact in employment discrimination cases:
Section 703(a): It shall be an unlawful employer practice for an employer …
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
That case is settled law. The Inclusive Communities case was about two sections of a different statute, the Fair Housing Act. The language of the two sections varies a bit, but the central words at issue can be seen here, in section 804(a), which makes it unlawful:
To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
The Supreme Court, by a 5 – 4 vote with Justice Kennedy writing the majority opinion, concluded that this language did encompass “disparate impact” as well as “disparate treatment” liability. Justice Kennedy writes (at 10) that Griggs and the plurality opinion in a subsequent case, Smith v. City of Jackson (2005), show “that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.”
Here, the Court says, the language that “refers to the consequences of actions” is the phrase “otherwise make unavailable” (11). That’s a possible reading, but not, it seems to me, an inevitable one. “[O]therwise make unavailable” might be meant, as the Court is suggesting, to refer to acts of unintentional discrimination – in contrast to deliberate “refusals” or “denials.” But one might instead say that “otherwise make unavailable” refers to intentional acts that just aren’t the same intentional acts as “refusals” or “denials.” A “failure to respond” – unaccompanied by an express refusal or denial – might be an example.
If the phrase “otherwise make unavailable” is ambiguous, we might look a few words further to the phrase “because of race.” What does it mean to make housing unavailable “because of race”? The dissent’s answer is that “because of” means “by reason of” or “on account of,” and if there’s any ambiguity in those definitions, the dissent goes on to cite a lower court case spelling out that “the terms [after] the ‘because of’ clauses in the FHA supply the prohibited motivations for the intentional acts … that the Act makes unlawful.” (Dissenting opinion of Alito, J., at 5). Alito maintains that this is simply what “because of” means in our language – and to make his point he cites 14 articles using the phrase in the Washington Post on the day this case was argued. (Id. at 4 – 5 n.2.)
If he’s right that the words “because of” have this meaning, and can only have this meaning, then the FHA must be insisting on actions “motivated by” race – “disparate treatment” – and must not be making actions with merely “disparate impact” unlawful.
But it’s quite clear that “because of” in our law does not always mean “motivated by.” We know that from Griggs itself, where the same “because of” language appears – and did not stop the Supreme Court from finding that the Civil Rights Act of 1964 prohibited employment decisions that had “disparate impact” on particular racial groups.
Still, one might say that Griggs was mistakenly decided, and that its mistake should not be propagated – and this is exactly what Justice Thomas does say in his separate dissent. So it is important to ask whether “because of” could possibly mean, as a matter of English language usage, something other than “motivated by.”
The answer, it seems to me, is clearly yes. Suppose we ask, for instance, why black students as a group do less well than whites on the SAT exam. We might answer, “because of race.” What we would mean is not that the SAT deliberately discriminated against black people, but that the SAT’s negative impact on black students as compared to whites results from the many ways that race in our society contributes to social and educational disadvantage. “Because of race,” when used this way, is shorthand for “as a result of the interaction between the action taken and the social conditions that race has shaped.” And this is anything but fanciful: the massive, systematic socioeconomic disadvantages facing black people in the United States today can’t plausibly be explained as the sum of acts of conscious, purposeful racial discrimination, persistent as that kind of discrimination is; there’s much more to it than that, and that “much more” is encompassed in the words “because of race.”
There’s also more to the Inclusive Communities case, but it’s important to recognize, right away, that speakers of English do use the words “because of race” to refer to “disparate impact” and not only to “disparate treatment.” So the plain meaning of the statute’s words did not rule out the Court’s interpretation.