On Thursday, in a 5–4 opinion written by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the Supreme Court held that the 1968 Fair Housing Act—passed in the wake of Martin Luther King’s assassination, huge riots, and urban destruction—allows federal action against “disparate impact” as well as overt discrimination. This ruling not only affirms an essential tool in combating racial discrimination, it upholds the view that racial disparities are a national problem that the government ought to combat.
Disparate impact—the idea that, whether intentional or not, something is discriminatory and illegal if it has a disproportionate “adverse impact” on a particular group—is easy to understand, on account of its universal presence in the United States. Explicit racial bias is frowned on and most Americans strive for tolerance and fair treatment. Yet, there are vast racial gaps in almost every part of American life, from incarceration and the criminal justice system, to education, health care, and even air quality. While it’s tempting to blame “personal responsibility” or a nebulous “culture of poverty,” neither can explain broad trends of racial inequality that snare minorities of all education and income levels. Put simply, racism is so embedded in the structure of American society—from how we distribute wealth to how we determine punishment—that neutral, “colorblind” actions can easily produce unequal, racist results.
This is most apparent in housing, where cities and towns can create and bolster segregation through exclusionary zoning, and banks can target minorities for the worst, and most dangerous, mortgage loans. Both practices have disproportionately hurt blacks and Latinos, and both practices have been targeted for lawsuits and federal investigation...
