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Monday, February 10, 2014

JW Challenges Obama Administration’s Race-Based Policy -- By Judicial Watch

Obsessed with stoking racial division, the Left now promotes dishonest intellectual absurdity that George Orwell would well recognize.

Under the Left’s racial spoils system theory of “disparate impact,” a defendant can be held liable for discrimination for a race-neutral policy that statistically disadvantages a specific minority group even if that negative “impact” was neither foreseen nor intended. In such cases, defendants can be forced to pay for harm caused not by their own actions, but by economic and statistical realities, even if beyond their control.

Predictably, this HUD policy has been challenged in court and JW is right in the thick of this debate. This week, JW joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the U.S. District Court for the District of Columbia in support of the insurance industry lawsuit challenging the HUD policy of enforcing disparate impact liability under the Fair Housing Act (FHA), even in instances where there is no direct evidence of discriminatory intent.

Before we get to JW’s principle legal arguments, however, let’s review what the law actually says about the issues of concern:

As made applicable by section 3603 of this title and except as exempted by sections 3603 (b) and 3607 of this title, it shall be 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.

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

[Note: The law also makes provisions for people deemed “handicapped” as well.]

Clearly, it is outside the bounds of law, for example, for a realtor to intentionally engage in discrimination against a prospective homebuyer because of their race or color or any of the other qualifiers listed in the law. (Note the words “because of” as we delve into excerpts from JW’s brief which illuminate our legal theory.)

Specifically, Judicial Watch argues that the HUD disparate impact regulation violates both the Administrative Procedures Act (APA) — restricting federal agencies from exceeding the powers given to them by statute — and the Fourteenth Amendment Equal Protection Clause. According to the amicus brief:

I. HUD’s Rule Violates the Administrative Procedures Act
Section 804(a) of the FHA does nothing more than make 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 phrase “because of race” conveys the fact that race must be the reason (or at least a reason) for the refusal. Accordingly, under the statute’s plain text, there must be an intent to discriminate against a member of one of the named classes in order for the action to be unlawful. HUD’s interpretation is inconsistent with the plain meaning of the statute, and so the regulation must be stricken.

II. Any Interpretation of the FHA That Would Allow HUD’s Rule Would Violate the Equal Protection Clause
Any interpretation of the FHA Section 804(a) which allows HUD’s regulation would render the FHA unconstitutional … HUD’s interpretation of the FHA would be unlikely to survive strict scrutiny, as the Supreme Court does not view “racial balancing” as a compelling state interest. In fact, the Supreme Court has found quite the opposite: “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

Warning that HUD’s “unlawful action poses a serious threat to the rule of law,” ” the Judicial Watch/AEF brief argues:

HUD’s broad, race-based housing regulation is especially harmful because it attempts to further enshrine the intellectually impoverished concept of race into law, and seeks to use the law to perpetuate a culture of racial politics in the housing market, and more broadly, in American public life. Such actions will serve to increase racial polarization and resentment in this country, perpetuating our domestic focus on ‘racial’ issues, and inevitably prolonging the misconception that a person’s ‘race’ is a useful distinction for judging who a person is and what they are entitled to.

As noted by The Weekly Standard, this is not the first court challenge to HUD’s “Disparate Impact” theory, but it might be the first to earn a court judgment: “…twice now since 2011 private parties brought disparate impact claims in cases that reached the Supreme Court and were accepted for review. Both cases presented the same question as the insurers’ associations present now—whether such claims are legitimate under the FHA. And both cases were settled mere weeks before oral argument, paving the way for their withdrawal from the Court.”

And why were they withdrawn and/or settled?

“Both settlements were driven by parties fearful that the Supreme Court would decide that disparate impact claims are not permitted under the FHA,” the Standard explains.

The “parties” responsible for the settlements include the race-baiting former head of the Justice Department’s Civil Rights Division Thomas Perez (See Black Panthers) and liberal organizations like George Soros’s Open Society Foundation. Liberals were afraid their cherished theory would be invalidated and they ducked out of court to avoid it.

Judicial Watch previously has gone to court three times in its efforts to expose and oppose the Obama administration’s controversial “disparate impact” policies. (Click link below to read more)
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