For four decades, this interpretation of the law — known in legal circles as “disparate impact” — has been used to punish banks for steering toxic loans to blacks and Latinos, and mortgage companies for charging higher fees. In 2011, the Justice Department relied on it to negotiate a $335 million settlement with Countywide Financial for charging higher rates to black and Latino borrowers who had the same credit risk as whites.
This interpretation means that victims of discrimination don’t have to prove the mindset of city officials and loan officers. They just have to show the data that a protected class is being unfairly affected. This idea has been upheld by repeatedly in federal court, and enforced by both by Democrats and Republicans alike. Even Congress acknowledged “disparate impact” as the standard when it amended the Fair Housing Act in 1988.
“It’s been around for 40 years,” said John Paul Schnapper-Casteras, special counsel at the NAACP [Legal Defense Fund], who filed an amicus brief in support of the Inclusive Communities Project. By taking this case, conservative justices appear to be channeling the mood of those Americans who want to see an end to laws that pay special attention to race, on the theory that America has moved past the need for them.
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