Supreme Court justices treated Texas' arguments harshly Wednesday that the Fair Housing Act should allow lawsuits for discrimination only when the plaintiffs can prove the policies that harm them were intentionally racist.
The tone of the opening arguments is no guarantee Texas will lose its case, which seeks to end the widespread use of "disparate impacts" as grounds for federal lawsuits alleging housing discrimination.
But many of the justices -- including conservative Justice Antonin Scalia -- indicated their view that the statute as written in 1968 and amended in 1988 seems to indicate Congress intended to allow the suits. That's a hopeful sign for the Dallas plaintiffs who initiated the case in 2008.
Congress passed the Fair Housing Act in 1968, during a week that many American cities burned amid protests after the killing of Martin Luther King Jr. The law prohibited policies that intentionally discriminate against renters or buyers on the basis of their race and some other characteristics.
The question before the court is whether the law also refers to policies that have the effect, for instance, of keeping blacks out of an area even if that wasn't the policies' purpose.
The case probably will come down to a matter of language. The act bars, for instance, policies or decisions that "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because" of their race.
Texas Solicitor General Scott Keller argued that lawmakers would have included disparate impacts in the law's language had they meant to do so. The law would have used wording, common elsewhere, that also bars race-neutral intentions that "have the effect" of unequal results for different races, he said. The "because" in the law's language refers to the intention of the policy, not the impact, he argued.
But Scalia, with strong and repeated support from the court's liberals, said it seemed quite clear from the 1968 statute and revisions enacted 20 years later that Congress had intended the phrase "otherwise make unavailable" to bar policies that have the effect of discrimination.
"And I -- I find it hard to read those two together in any other way than there is such a thing as disparate impact," Scalia said.
Chief Justice John Roberts repeatedly pushed the other side, including Dallas lawyer Michael Daniels arguing for the original plaintiffs, on how to decide which disparate impacts were good and which were bad.
For example, Roberts asked, who is to say that policies that encourage black residents to move to wealthier white areas is better or worse than policies that revitalize badly blighted areas that are heavily black and, if the revitalization works, would see more low-income residents, not fewer.
The attorneys and several of the justices argued that those are questions for the states that apply the housing tax credits that are the center of the case. In fact, the U.S. solicitor general argued that the Obama administration took no position on whether Dallas-based Inclusive Communities had been right to sue in the first place.
The suit, which accused Texas of awarding more federal tax credits for low-income housing in black neighborhoods than in white areas, drew some opposition from groups that want to use the credits to rebuild some of Dallas' poorest areas.
But Justice Stephen Breyer tried to push aside all of the legal arguments and ask Keller -- on the job for only a few days -- what the state's interest was in challenging laws that had been in effect for nearly 40 years, working to end housing segregation.
Keller told the justices that Texas brought the suit because allowing suits under disparate impact doctrine threatens "to undermine the objectives of the Fair Housing Act."
That was a tough sell for many of the justices, with Breyer noting that after nearly 40 years -- and decisions in 11 appellate courts that have upheld disparate impacts -- none of the potential horrors that Texas points to have come about.
Afterward, in an interview with The Dallas Morning News, Keller said that allowing the disparate impacts theory to be codified into the law would amount to a "vast expansion" of the Fair Housing Act and that the Dallas case is precisely the kind of case that should be disallowed.
The state has been "hauled into court," he said, merely because it had been using the tax credits in ways that helped low-income, largely black neighborhoods.
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