This editorial appeared in JSOnline and was written by Karyn Rotker.
In all the excitement about marriage equality and the Affordable Care Act, a critical Supreme Court opinion has been somewhat overlooked. In Texas Department of Housing and Community Affairs vs. Inclusive Communities Project, the Supreme Court preserved a critical tool to combat housing segregation and discrimination.
In Inclusive Communities, the court decided that tenants, prospective homeowners, housing providers and others do not have to show intentional discrimination to win a Fair Housing Act claim. In the Milwaukee metropolitan region — the most racially segregated region in the United States for African-Americans, and among the worst for Latinos — the Inclusive Communities decision comes as very good news.
The Supreme Court upheld the ability to base a Fair Housing Act claim on the discriminatory effect of a particular practice, such as "arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units," and other policies that have the effect of excluding certain groups — such as people of color and people with disabilities — from housing, or of preventing developers from providing certain types of housing. Around the country and in Wisconsin those policies often come in the form of local ordinances designed to restrict multifamily housing — especially affordable housing for families. Those kinds of practices, Justice Anthony Kennedy wrote, are at the "heartland" of these Fair Housing claims.
The ACLU of Wisconsin has used these critical Fair Housing Act provisions to combat housing segregation. For example, in the early 2000s we challenged an effort by the city of South Milwaukee to tear down an affordable housing complex that housed about 20% of the city's African-American population, as well as many people with disabilities. In 2009, a federal jury found in the tenants' favor on exactly the kind of claims the court just upheld: that tearing down this housing complex would have a "discriminatory effect" on persons of color and persons with disabilities. The fact that the jury couldn't agree about whether South Milwaukee intentionally discriminated shows the importance of the discriminatory effect claims upheld in Inclusive Communities.
In 2010, we challenged a decision by the Dane County village of Shorewood Hills to reject a developer's affordable housing proposal, arguing that it was unjustified and had a discriminatory effect on persons of color in the Madison area. We settled that complaint, and affordable housing was built. And we've successfully advocated for changes in so-called "nuisance" ordinances that have a discriminatory effect on women when used in cities like Milwaukee to evict victims of domestic violence for too many calls to police.
Just as important, public officials routinely claim they aren't trying to discriminate — they did it in the ACLU cases, and they do it in many others, such as the 2011 effort to block affordable housing in New Berlin. The Supreme Court recognized what civil rights advocates have long said: that discrimination doesn't always show itself in overt ways. Thus, Justice Kennedy wrote, allowing Fair Housing lawsuits based on the discriminatory effects of certain practices "permit(s) plaintiffs to counteract unconscious prejudices" and "prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping." In other words, allowing these claims eliminates the often-impossible task of proving that derogatory statements about, for example, the kinds of people who live in affordable housing, establish intentional discrimination.
We need every tool in the tool kit to work to end the segregation that still pervades this community and this state. The ACLU of Wisconsin is pleased that the Supreme Court has made sure that one of these critical tools remains at hand.
Karyn Rotker is senior staff attorney for the ACLU of Wisconsin.