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Berkeley Law Professors Write Amicus Brief in Landmark Case

US Supreme Court
U.S. Supreme Court

By Leslie A. Gordon

Berkeley Law professors were among 61 scholars from across the country who drafted and signed an amicus brief in a pivotal U.S. Supreme Court case about racial discrimination in housing.

Although a settlement deal was reached just days after filing last week, Township of Mount Holly, et al. v. Mt. Holly Gardens Citizens in Action, Inc., et al. perfectly highlighted the decades-old problem of residential segregation in the U.S. The case also presented what would have been a first-time question for the U.S. Supreme Court: whether the so-called “disparate impact” standard can be used to enforce the Fair Housing Act.

Disparate impact refers to an adverse effect of a neutral practice that, despite the non-discriminatory intention, disproportionately affects individuals belonging to a protected group.

The case centered on the Township of Mount Holly, New Jersey which planned to demolish homes and redevelop a predominantly African-American and Latino neighborhood, displacing homeowners who had lived there for many years. Residents sued, arguing that the redevelopment plan violated section 804(a) the Fair Housing Act because it didn’t adequately provide alternative, integrated housing options within the Township. The Fair Housing Act not only prohibits housing discrimination, but charges the government with a duty to “affirmatively further fair housing.”

The amicus brief, drafted largely by Berkeley Law scholars, asked the Court to affirm the decision of the Third U.S. Circuit Court of Appeals in Philadelphia. The circuit court had ordered a trial to determine whether the redevelopment plan would displace the neighborhood consisting mostly of African-American residents.

The professors’ brief detailed the history of federal, state, and local public policies that, since the 1930’s, have created segregated conditions in the country’s metropolitan regions. Specifically, the brief explained how redevelopment plans like Mount Holly’s have a disparate racial impact: When government decisions that are seemingly race-neutral are combined with private housing choices, they perpetuate and even exacerbate those segregation patterns.

Richard Rothstein
Richard Rothstein

Even after overt discrimination in housing was prohibited, “the government continued to fund developments that used developers and realtors who wouldn’t sell to blacks,” explained brief co-author Richard Rothstein, a senior fellow at Berkeley Law’s Chief Justice Earl Warren Institute on Law and Social Policy and research associate at the Economic Policy Institute.

As a result, African Americans didn’t benefit from profound housing appreciation in the second half of the 20th century, which contributes to their inability to move to integrated neighborhoods today, Rothstein argued.

Because African Americans and other minorities are forced to seek housing in predominantly low-income, non-white communities, the FHA’s proscription to ameliorate and remediate segregation’s effects is repeatedly violated, Rothstein added.

The same goes for redevelopment plans like the one in Mount Holly: Displaced African-American residents typically don’t have affordable housing options in nearby neighborhoods, which are often predominantly white, and instead must relocate to racially isolated neighborhoods. As a result, urban ghettos remain separate from middle-class, largely white suburbs. Affirmed in eleven Courts of Appeals, the disparate impact standard remains essential to address these policies, according to the amicus brief.

“You can’t discriminate openly, but that’s not sufficient to eliminate bars to integrated housing, and we sought to refresh court’s memory about this history,” Rothstein said. “Plus, if there hadn’t been explicit bars to housing [in the early part of the 20th century], African Americans could have moved into other neighborhoods when it was affordable and they could have benefited from the enormous appreciation. We wanted the Court to understand why the money offered to Mount Holly residents is not adequate to avoid exacerbating racial segregation.”

john a. powell
john a. powell

john a. powell (who does not capitalize his name) and Stephen Menendian, executive director and assistant director, respectively, of the Haas Institute for a Fair and Inclusive Society, were among the dozens of social scientists, housing historians, demographers and segregation researchers listed as amici curiae in the Mount Holly brief. Argument was set for December. According to news reports, the tentative settlement deal would give some homeowners new duplexes to be built in the neighborhood. This is the second time a settlement deal on this issue has been reached before the disparate impact doctrine could be evaluated by the Court.

“Although this particular case was settled, the issue will undoubtedly come before the Court again,” powell said, noting that there is a 65-year history of racial segregation in housing. “Under the Fair Housing Act, residents have a tool to ameliorate this discriminatory effect – they can show that a redevelopment program has a disparate impact. When the challenge eventually comes before the Court, we plan to update and re-submit our amicus brief.”