Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Cary Holley
Cary Holley is a freshman at the University of Pennsylvania studying Political Science.
Our country’s founding document proclaims certain inalienable rights: life, liberty, and the pursuit of happiness.  While access to fair housing may not be explicitly guaranteed, the principles that lie at the heart of the subject relate to such rights. Moreover, philosopher John Locke’s lesser-known proclamation, which inspired that of the Founding Fathers, specifically addresses housing by declaring a right to ‘life, liberty, and estate’.  Although legislators have made efforts to advance fair access to housing, lingering discrimination makes it hard to say that the government is fulfilling its Lockean obligations.
In the midst of all of the judicial activism that fortunately took place during the Civil Rights Movement, the legislative branch successfully passed the Fair Housing Act in April of 1968. Also referred to as Title VIII of the Civil Rights Act of 1968, this statute explicitly prohibits discrimination based on race, sex, national origin and other protected classes.  However, as with most laws that aim to inhibit inequity, a question of implementation lingered: How can one unequivocally prove bias? In 1976, the United States Supreme Court heard a case that confronted this concern.
Less than a decade after the enactment of the Fair Housing Act, the Metropolitan Housing Development Corporation attempted to coordinate with the Village of Arlington Heights in Illinois to obtain permits to construct moderately-priced, racially-integrated housing. Arlington denied this request, and the housing corporation challenged Arlington’s actions as discriminatory.  Once the case worked its way up to the Supreme Court, the justices had to determine whether Arlington’s refusal to give the corporation a permit was discriminatory. In order to do this, the court decided that the housing corporation had to be able to establish Arlington’s ‘deliberate intention’ to discriminate. In other words, evidence that the practice in question produced a ‘disproportionate impact’ on certain communities was not enough. 
To cogently demonstrate a company’s deliberate intention to discriminate is obviously a lofty standard. Luckily, in 2015, some Supreme Court Justices recognized this when ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. In this case, the same ‘disproportionate impact’ versus ‘deliberate intention’ debate ensued. Through basing their decision upon precedents related to cases concerning other forms of bias, the majority on the court declared that housing cases could be based upon either type of evidence.  This more attainable standard may prove to be quite useful in combating bias considering that a ‘disproportionate impact’ can be objectively demonstrated with data. Nevertheless, this precedent still requires at least some evidence of motive to go along with such statistical evidence. 
While the Fair Housing Act has historically been utilized to protect the rights of people of color, it more recently has been employed to safeguard the rights of members of the LGBTQ+ community. Earlier this month, a federal judge ruled in favor of a transgender woman and her partner who were discriminated against when looking to rent a townhouse in Colorado. This ruling was particularly important because it focused on disputes about the language in the Fair Housing Act regarding sex discrimination. When ruling in favor of the couple, the federal judge posited sex discrimination to encompass sex stereotyping (i.e. “the perceived failure to conform to gender norms”).  In a more restrained interpretation, the 10th Circuit U.S. Court of Appeals recently ruled that sex discrimination does not encompass anti-gay or anti-trans prejudice.  This question over what qualifies as sex discrimination will be interesting to monitor as more housing inequity cases are heard over the next few years.
Thus, it is evident that the fight for fair housing is nowhere near complete. As long as xenophobia prevents people from peacefully living in diverse communities, historically marginalized groups will continue to be unfairly disadvantaged and segregated from mainstream society. So, through fair legislative interpretations and clear precedents, our nation will hopefully get closer to providing all citizens the rights that the great minds behind our democracy found to be so essential: life, liberty, and estate.
 US Const., art. 1, sec. 1. (1776)
http://www.ushistory.org/DECLARATION/document/ (accessed April 18, 2017).
 History.com Staff. "John Locke." History.com. 2009. Accessed April 18, 2017.
 "Housing Resources." The Public Interest Law Center. Accessed April 18, 2017.
 Chicago-Kent College of Law at Illinois Tech. "Village of Arlington Heights v. Metropolitan Housing Development Corporation." Oyez. https://www.oyez.org/cases/1976/75-616 (accessed April 18, 2017).
 Liptak, Adam. “Justices Back Broad Interpretation of Housing Law.” The New York Times. June 25, 2015. Accessed April 18, 2017.
 Chicago-Kent College of Law at Illinois Tech. "Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.." Oyez. https://www.oyez.org/cases/2014/13-1371 (accessed April 18, 2017).
 Stern, Mark Joseph. “Federal Judge Rules That the Fair Housing Act Protects LGBTQ People." Slate Magazine. April 06, 2017. Accessed April 18, 2017.
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