Valerie
Schneider’s article, In Defense of
Disparate Impact: Urban Redevelopment and the Supreme Court’s Recent Interest
in the Fair Housing Act, published in the Summer 2014 Missouri Law Review,
argues that the Fair Housing Act “must recognize claims based on disparate
impact analysis alone.”[i] The article specifically argues that
disparate impact analysis is in fact critical in urban redevelopment
discussions because decisions are “often made through a multi-party protracted
process, in which a discriminatory intent may be impossible to discern or
entirely absent.”[ii] This article analyzes one of the most recent
disparate impact cases, Township of Mount
Holly v. Mt. Holly Gardens Citizens in Action, Inc., the specific language
in the Fair Housing Act, various publications regarding disparate impact theory,
the manner in which redevelopment decisions are made, and finally, common
concerns about disparate impact jurisprudence.[iii]
Schneider opens her analysis with a
summary of Township of Mount Holly v. Mt.
Holly Gardens Citizens in Action, Inc., a recent disparate impact case that
settled shortly before being argued in front of the Supreme Court.[iv] The Gardens was a subdivision in Mount Holly
that was originally constructed to house military families in the 1960s.[v] During the 1970s the subdivision began facing
many common problems poor communities face, and in in the early 2000s the
community continued to fail while the crime rate increased.[vi] In 2002, the Mount Holly Township conducted a
study that determined the Gardens subdivision was “blighted.”[vii] In 2003, the Township adopted a redevelopment
plan that left almost all of the new homes out of reach for previous Gardens
residents.[viii] The Township became “increasingly white,
making already segregated communities even more segregated.”[ix] Schneider highlighted this case to illustrate
that “[d]espite the Fair Housing Act’s broad prohibition against discrimination
in housing, forty-five years after the passage of the Fair Housing Act housing
patterns in the United States continue to be characterized by high levels of
segregation.”[x]
The article considers some of the
arguments that opponents of disparate impact analysis refer to when arguing
that the Fair Housing Act does not support disparate treatment claims.[xi] The article states that to support their
arguments, opponents “point to the fact that, unlike Title VII and the ADEA,
the Fair Housing Act does not contain the word ‘affect.’”[xii] Schneider argues that the Fair Housing Act is
actually very similar to the language and structure of Title VII and the ADEA
“in many critical ways.”[xiii] Similarities mentioned in the article include
that each act contains language that focuses on motivations of the actor and
that each act “contains language that focuses on the impacts of potentially neutral decisions on protected classes, as
opposed to an actor’s motivations.”[xiv] Schneider explains that while focusing so intently
on the similarities and differences may seem “strained,” her overall argument
is that disparate impact analysis cannot be excluded from Fair Housing claims
simply because the act does not contain the word “affect.”[xv]
Schneider’s article concludes by
explaining that disparate impact analysis is necessary to ensure that
redevelopment decisions do not undermine the goals of the Fair Housing Act.[xvi] Schneider highlights three main reasons that
support this argument.[xvii] First, urban redevelopment decisions are
often made through a complicated process where intent is extremely difficult to
discern or even possibly not relevant to whether discrimination has occurred.[xviii] Second, it is highly possible that
considering the manner in which redevelopment decisions are made, “it is
especially possible that unconscious or unintentional bias could influence the
outcome.”[xix] Lastly, “urban redevelopment decisions are
among the main forces shaping our cities right now. . . .”[xx] Schneider reminds readers to consider “effects” of urban redevelopment
decisions rather than the “intent”
behind those decisions when considering both sides of the debate about whether
the Fair Housing Act allows for disparate impact analysis.[xxi]
The Schneider article considers
disparate impact analysis from various angles.
It considers the history behind housing segregation, the language of the
Fair Housing Act in comparison with Title VII and the ADEA, the arguments on
both sides of the debate, recent disparate impact cases, and current concerns
about disparate impact jurisprudence.
The article focuses and emphasizes on the importance of considering effects
from urban redevelopment decisions rather than the intent motivating those
decisions. This argument hinged on the
fact that redevelopment decisions are often made through a complicated process
which can hide intent, and also that unintentional or unconscious bias can
often times motivate these decisions.
The article walks the reader through arguments on both sides of the
debate then highlights what the reader should ultimately consider when
analyzing these arguments. The article
provides a historical background that leads right into an analysis of the Fair
Housing Act’s language and the effects of disparate impact.
-Tara A. Bailes
