That's the question posed by law professor and writer Garrett Epps in this article about Wednesday's Supreme Court oral argument (and the issues raised by it) in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. — the case about whether the Fair Housing Act authorizes claims based on disparate impact (and not only deliberate discrimination). The piece starts with a history lesson about how disparate-impact analysis began shortly after enactment of the Civil RIghts Act of 1964:
The year was 1965. The ink on the Civil Rights Act of 1964 was hardly dry. Duke Power Company executives at the Dan River Steam Station near Draper, N.C., needed a new personnel policy. The old one had been simple: segregation. African Americans worked as laborers; only whites could do other jobs. But Title VII of the new Act forbade employers to discriminate by “race, color, religion, sex, or national origin.” On July 2, 1965—the day the Act took effect—Duke Power announced a new policy. New hires had to have a high school education and pass two standardized tests—unless, that is, they wanted to work as … laborers. If laborers wanted to transfer to other jobs, they either had to have a high school diploma or had to pass the tests. At that time, 34 percent of whites in North Carolina had finished high school; only 12 percent of blacks had done the same. Federal agencies ran experiments using the tests; 58 percent of whites passed, but just 6 percent of blacks. The company argued that tests would produce an educated, skilled workforce. It would also produce a new post-segregation plant that looked a lot like the old segregated one, but there was no evidence that this was its aim.
Epps's piece ends with a statement about U.S. housing patterns in 2015:
The sunny, “look how far we’ve come” view [of race discrimination] seems particularly hard to justify in housing. Anyone who can look at American cities—their housing patterns, their employment figures, or their police policies—and see a new dawn of color-blindness is wearing glasses unavailable to me. A ruling cutting back the [Fair Housing Act] would compare to the Court’s earlier mistakes in the context of schools and voting. An opinion destroying disparate impact altogether would be a disaster.
