As the Supreme Court finished its term, we looked ahead to see which big cases the justices have taken for review starting in the fall. And lo, Township of Mount Holly, New Jersey, et al. v. Mount Holly Gardens Citizens in Action, et al. caught our eye.
Some years ago the township adopted a plan to redevelop Mount Holly Gardens, a 30-acre neighborhood of bad housing and high crime with a disproportionately minority population. The plan called for demolishing roughly 330 houses and replacing most of them with market-rate housing costing between $200,000 and $275,000, the purchase of which the township would subsidize.
As it happened, some Gardens residents complained that they wouldn’t be able to afford to buy a new home in the redeveloped area or to live elsewhere in the township. Joining with former residents and a residents’ association, they sued the township, arguing that the redevelopment plan would adversely affect more black and Hispanic households than white households, and that most white but few black and Hispanic households in the county would be able to afford new homes in the redeveloped Gardens.
Mount Holly thus stands accused of discriminating against blacks and Hispanics in violation of the Fair Housing Act. And it stands accused under a theory of discrimination known as “disparate impact,” which targets policies that are neutral and nondiscriminatory in their intent but have a disproportionate impact on people of a particular race or ethnicity. Disparate impact is fairly described as an attempt to prove discrimination using statistics.
There is, however, a slight problem with the disparate impact claim in the Mount Holly case: It’s not provided for in the Fair Housing Act. Congress has never legislated it. Most of the appeals courts, however, have endorsed it. The issue the Court wants to resolve, understandably, is “whether disparate impact claims are cognizable under the fair housing case”—meaning if such claims can even be brought in a federal court. If the Court says no, then Mount Holly wins.
But will Mount Holly actually be decided? Two years ago the Court took Magner v. Gallagher, a case from St. Paul, Minnesota, in which the justices wanted to answer the exact same question about disparate impact that’s now before the Court in Mount Holly. In Magner, with oral argument to take place in fewer than three weeks, St. Paul petitioned for dismissal of its case, thanks to pressure from under-the-radar civil rights groups and some dubious deal-making by the Obama Justice Department and its civil rights chief, Thomas Perez (see Terry Eastland’s account of the saga, “Thomas Perez Makes a Deal,” in our issue of May 27, 2013). The administration is committed to using disparate impact theory wherever it can—making more of us into unwitting discriminators—and Perez’s worry was that the Court would hold against disparate impact claims in housing.
So: What in the devil is going on behind the scenes with Mount Holly? A lawyer close to the case tells The Scrapbook that outside parties are now involved, and that there is “more intense pressure” being applied. Perez, he says, has yet to step in. Maybe he has figured out that involvement in Mount Holly could worsen the outlook for his confirmation as labor secretary. Here’s hoping that Mount Holly holds fast—and wins in the Supreme Court.