
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.”
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.
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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