The roots of the important housing discrimination victory won by civil rights groups in the U.S. Supreme Court on Thursday reach back 45 years to the creation of the little town of Black Jack, Mo.
On Thursday, the court ruled 5-4 that housing discrimination can be proven by “disparate impact.” That means that if government policies have a disparate effect on minorities they may violate federal law even if there is no proof of overt discriminatory intent.
Proving statistically that a housing policy has a discriminatory effect on blacks or other minorities is easier than proving the smoking gun of discriminatory intent. So the court’s opinion, written by Justice Anthony M. Kennedy, is viewed as an important civil rights victory. All four justices appointed by Democratic presidents joined Kennedy.
The 1974 Black Jack decision by the 8th U.S. Circuit Court of Appeals in St. Louis was the first time that a federal appeals court had agreed that the Fair Housing Act of 1968 encompassed discriminatory effect as well as intent.
After the Black Jack decision, 10 other federal appeals courts endorsed the disparate impact theory of housing discrimination. But it wasn’t until Thursday that the Supreme Court went along.
In fact, civil rights groups were so fearful that the Supreme Court would reject disparate impact that they went to great lengths to keep the court from deciding two recent cases involving the same issue. For that reason, the court’s opinion on Thursday was a pleasant surprise for civil rights groups.
“We are thrilled that Justice Kennedy and the majority sided with the Obama administration, civil rights groups and consumer advocates,” said Will Jordan, executive director of the Metropolitan St. Louis Equal Housing and Opportunity Council (EHOC) “For over four decades, our nation’s Fair Housing Act has been an essential tool for preventing discrimination and expanding opportunity to everyone in this country. St. Louis’ neighborhood-level segregation is world famous, and this decision preserves an essential tool for Fair Housing advocates.”
The court’s ruling came in a case brought by a Texas Inclusive Communities Protect against the Texas Department of Housing and Community Affairs. The fair housing group claimed the Texas agency was channeling federal housing subsidies to mostly black inner city areas of Dallas rather than the white suburbs where the subsidies would increase integration.
Kennedy noted that the Fair Housing Act had passed immediately after the assassination of the Rev. Dr. Martin Luther King Jr. in April 1968 and the rioting that followed. Kennedy noted it was a time when “the nation faced a new urgency to resolve the social unrest in the inner cities.
“…Much progress remains to be made in our nation’s continuing struggle against racial isolation,” Kennedy wrote. “The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”
Now turn back to the clock to 1969. The Inter Religious Center for Urban Affairs (ICUA) began planning Park View Heights to provide housing for low- and moderate-income people trapped in the St. Louis ghetto.
The group settled on 12 acres on Old Jamestown Road in unincorporated St. Louis County, and the Federal Housing Administration indicated it would provide federal funding.
Within a matter of weeks, a citizens group formed to incorporate Black Jack and keep out the housing project with an exclusionary zoning law. The courts found that opposition “was repeatedly expressed in racial terms” by the leaders of the incorporation movement. “Racial criticism of Park View Heights was made and cheered at public meetings.”
The American Civil Liberties of Eastern Missouri challenged Black Jack’s efforts to exclude the housing. Richard Baron, then an ACLU lawyer and now a noted developer, was involved in the lawsuit. The challengers lost in the lower courts where Judge Roy Harper ruled against them. Harper, who had been appointed by President Harry Truman, was said to be hostile to civil rights.
The 8th Circuit reversed Judge Harper. The appeals court decision is “still the best exclusionary zoning case from what I know,” Baron said in an email.
The federal government also filed suit against Black Jack. The action was taken by the Nixon administration under the direction of then Secretary of HUD George Romney.
Judge Gerald Heaney, a civil rights champion who died in 2010, wrote the 1974 8th Circuit appeals court decision. He said those challenging Black Jack need to “prove no more than that the conduct of the defendant actually or predictably results in racial discrimination; in other words, that it has a discriminatory effect.”
It was a court ruling that was echoed over the next decades in federal appeals courts across the country – and Thursday in the Supreme Court.
Heaney wrote that Black Jack’s action had to be seen in light of St. Louis’ long history of housing segregation.
He said that Black Jack’s exclusionary zoning was “but one more factor confining blacks to low-income housing in the center city, confirming the inexorable process whereby the St. Louis metropolitan area becomes one that ‘has the racial shape of a donut, with the Negroes in the hole and with mostly Whites occupying the ring.’”
Black Jack’s ordinance was found to be illegal and the city had to pay $450,000 to Park View Heights.
Baron, who has been active in looking into housing that might be developed in the wake of the Ferguson protests, said he thinks some of the same attitudes are alive today.
“I would suggest that the same mentality of the residents in this North County area that led to the creation of the City of Blackjack to stop the development were alive and well in Ferguson that led to the court system, racial profiling, etc. Nothing changed!”
Justice Kennedy made clear that just because civil rights groups can make cases based on disparate impact doesn’t mean they will win all or even most of them. They may not even win the Texas case. Kennedy expressed concern about “abusive disparate-impact claims.”
He noted that an argument can be made in Dallas both for revitalizing the central city with federal housing money and for using it in the white suburbs to further integration.
“This case,” he wrote, “may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low-income housing.” If that turns out to be true, proof of disparate impact will not be enough.
William H. Freivogel is a professor at Southern Illinois University-Carbondale and a regular contributor to St. Louis Public Radio.