Finding bipartisan areas of agreement is a rare feat in Washington. Yet, for over four decades, both Republican and Democratic administrations have agreed on the importance of the 1968 Fair Housing Act as a critical tool for addressing widespread residential segregation and discrimination in housing. We have seen this first hand. As two former Department of Justice officials we had the honor of leading fair housing and other civil rights enforcement for the Nixon, Ford and Bush I administrations. We understand how essential it remains to ensure that all Americans regardless of race, national origin, religion, sex, disability and familial status are treated equally. 

On January 21, the U.S. Supreme Court will hear arguments in a case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  The case will test our nation’s commitment to equal treatment under the law.   It raises the question of whether claims of unjustified disparate impact – a key method of enforcing the Fair Housing Act -- will continue to be recognized and be available to ensure that landlords, and other housing providers, as well as local governments and banks, choose policies that apply fairly to all persons.

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The Fair Housing Act was adopted in 1968 as a legacy to Dr. Martin Luther King shortly after his assassination and was a response to substandard living conditions and deeply embedded residential segregation felt across the country.  From its founding the Fair Housing Act was etched in bipartisan cooperation.  The bill passed Congress because of great leadership from both parties -- the late Republican Sen. Edward Brooke (Mass.), our nation’s first African American senator who recently passed away, and Democratic Sen, Walter Mondale (Minn.).   Over the life of the Act, presidencies of both parties have been responsible for its enforcement and we have witnessed a consistent recognition of the importance of upholding a key civil rights law that advanced equality across our nation.

But in addition to bipartisan support in Congress, there have been four decades of legal precedent that uniformly recognizes the disparate impact standard as a one of the accepted methods of proving violations of the Fair Housing Act.  It started over forty years ago in a successful housing case against a St. Louis suburb brought by the Nixon Administration.  Since then the courts of appeals in 11 circuits have unanimously upheld the disparate impact standard as a key tool in addressing residential segregation and housing discrimination.

The disparate impact standard is an invaluable tool to fighting covert discrimination and expanding housing opportunities for women, families with children, people with disabilities, and minorities.  There are still those who intentionally exclude people because of their identity. But more often these days, larger institutions such as local governments, banks and real estate companies engage in unjustified or unnecessary practices that, while neutral on their face, have the practical effect of discriminating against people protected by the Act in search of housing.  A disparate impact standard is critical to attacking such systemic discrimination. 

The disparate impact standard simply requires that when possible, policy-makers should pick the fairest option available to avoid harmful discrimination.  If a policy unnecessarily excludes or harms people protected by Act, such as families with children or people with disabilities, it should be set aside in favor of one that serves everyone’s needs fairly, effectively, and without discrimination

But now, this standard and the Act’s effectiveness are at risk in this case.  Without the availability of disparate impact claims, governments and other institutional actors would be able to pursue cleverly concealed, intentionally discriminatory acts. The adverse consequences of such a ruling would be felt for generations.

Fair housing is a bedrock civil rights protection, crucial to our nation’s core value of equal opportunity for all.  It is common sense that we should preserve a legal standard that for decades has been unanimously accepted by courts of appeals and is crucial to challenging barriers to equality and fairness.  These values lie at the foundation to who we are as Americans, and strengthen all communities.

It is our hope that the Court works to protect the Fair Housing Act and continues to advance inclusive and diverse communities that are free of discrimination and are critical to our national success and prosperity in the 21st century.

Pottinger and Dunne are former assistant Attorneys General for Civil Rights at the Department of Justice.  Pottinger served during the administrations of Richard Nixon and Gerald Ford and Dunne served during the administration of George H. W. Bush.