Breathing Life Back into Intent: Proving Racially Discriminatory Purpose in Housing Cases in a Post-Arlington Heights World
Clearinghouse Review Journal of Poverty Law and Policy, p. 341, September-October 2006
17 Pages Posted: 31 Jan 2015
Date Written: 2006
Housing advocates alleging systemic racism in the provision of housing services can take two litigation paths: discriminatory intent (Fifth and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. §§ 1981 and 1982, Title VI of the Civil Rights Act of 1964, or Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act) and disparate impact (Title VIII).1 While advocates have turned frequently to the latter in recent decades, the former has been relied upon less (save where there is direct evidence of intent). This is due in part to Village of Arlington Heights v. Metropolitan Housing Development Corporation (intent cannot be proved by evidence of disparate impact alone) and Personnel Administrator of Massachusetts v. Feeney (foreseeability and inevitability of discriminatory impact cannot alone prove intent; defendant’s action must have been taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”), as well as the fact that the very meaning of “discriminatory intent” has become inconsistent and the methodology for proving it unclear.
I intend for this article to be a road map through this complex doctrine since reinvigorating discriminatory intent is critical given the fragility of the disparate impact cause of action. While proving intent may be difficult, making creative use of evidence and applying intent tests developed in other areas (such as school discrimination) to housing cases are possible. In fact, the U.S. Supreme Court says that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts.” And Arlington Heights notes the relevance of “such circumstantial and direct evidence of intent as may be available.”
Keywords: housing, discrimination, arlington heights, fourteenth amendment
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