Jimmy Emerson, DVM

On January 21, the Supreme Court heard oral arguments in a case involving a dispute between the Texas Department of Housing and Community Affairs and an Affordable Housing Developer, the Inclusive Communities Project, Inc. (TICPI). At the center of the case is the issue of what criteria should be used to define whether state housing agencies have engaged in de facto discrimination in providing low-income and minority households with access to housing. How the Court decides the case will have far-reaching implications for affordable housing advocates across the country.

Despite the progress made in reducing overt racial housing segregation since the passage of the Fair Housing Act (FHA) in 1968, segregated residential patterns remain entrenched in the urban landscape, according to Al Jazeera America. Under the Act, state and county agencies that receive funding from the U.S. Department of Housing and Urban Development (HUD) must undertake active steps to undo the legacy of racial segregation in housing. A major tool in the effort to provide affordable housing is the low-income-housing tax credit. Introduced in 1968, the credit provides a tax break to developers willing to build units with reduced rents. In principle, the credit could help finance new apartments in wealthy neighborhoods that poorer families can afford, giving them access to higher quality schools and a safer environment. In practice, the credits are allocated by states, and fair-housing advocates argue that states tend to favor developments in high-poverty, racially homogeneous areas rather than use the credits to create integrated neighborhoods. In the case before the Supreme Court, TCIPI claimed that the Texas housing agency had violated the FHA by disproportionately rejecting applications for tax credits to build low-income housing in “predominantly Caucasian neighborhoods.”

To support its charge, the group relied on the legal theory of “disparate impact,” which HUD has long used to determine violations of the FHA, even in the absence of discriminatory intent. If a plaintiff can show that discrimination was the actual result of a given practice, the defendant must show that the practice was necessary to achieve a “legitimate” and nondiscriminatory goal. For its part, the Texas housing authority argued that legal liability should depend not on results but on proof of intent to discriminate, something that is extremely difficult to achieve in a court of law.

These issues are currently playing out close to Washington, in Anne Arundel County, Maryland. In 2011, the county council seemed to signal support for affordable housing when it passed a law allowing special exemptions in the zoning process for low-income housing. Under that law, land originally zoned for low density development could be developed with a far larger number of units per acre if these were designated for low-income residents. In January of this year, however, the council passed a bill reversing this decision. This legislation acquired much of its impetus from local opposition to a proposed low-income development in the largely white, middle-class community of Severna Park, Maryland. An analysis by the American Civil Liberties Union, Maryland chapter, estimates the bill would reduce by 87 percent the county area available for dense low-income housing. Affordable-housing advocates are gearing up to appeal to HUD. If the Supreme Court rules in favor of Texas, they will have one less weapon in their fight.