After long deferring the issue, the U.S. Supreme Court has now agreed to accept a case which will determine the definition of housing discrimination. The implications for Marin are huge.

The high court took on appeal Texas Department of Housing and Community Affairs vs. Inclusive Communities Project.

It emanates from a New Orleans-based 5th Circuit Court decision which summarized, "The primary issue on appeal is the correct legal standard to be applied in disparate impact claims under the Fair Housing Act."

Since the Obama administration's advent, the Department of Housing and Urban Development holds that what must be proved to find racial discrimination is that some government action creates a "disparate impact."
Essentially this doctrine says that if any laws, especially zoning ordinances, are instituted and thereafter results in what HUD determines as racial imbalance, the law is deemed inherently discriminatory even if that's not its intention. Actions are then mandated to remedy the alleged discrimination.

This aggressive stance contrasts with the once widely accepted notion that discrimination findings require a "specific intent" to discriminate.
It's what the fractious litigation involving HUD and New York's suburban Westchester County is about. The federal agency claims that prosperous Westchester's utilization of single-family-home zoning is, by definition, racially discriminatory. As fewer so-called "protected class" members live in single-family neighborhoods, zoning should be changed to multi-family.

Texas vs. Inclusive Communities involves a state of Texas appeal of a judgment approving a "disparate impact" claim. There it was claimed that housing grants, including Section 8 funds, were directed exclusively to minority-majority areas and not into middle class majority-white neighborhoods.

With much of Marin zoned for single-family homes and open space, the ramifications to Marin, similar suburban communities and elite urban neighborhoods are obvious. If HUD prevails it can mandate multi-unit housing in historically single-family and rural communities nationwide.
Marin's potential consequences substantially increased after its Board of Supervisors in 2010 unanimously approved a "Voluntary Compliance Agreement" with HUD. That pact is similar to the one enabling the federal no-holds-barred enforcement action against Westchester. It requires placement of multi-unit low-income housing within upper-middle-class communities.

The Marin-HUD agreement partially explains the county supervisors' consistent advocacy for more Marin multiunit housing designed to facilitate racial and class diversity.

HUD and housing activists maneuvered to settle two similar suits before reaching the justices. Their concern was the top court would decide actual discriminatory intent was required to justify findings of discrimination.

Appellant Texas is betting on a Supreme Court significantly more conservative than circuit courts.
The nine justices will decide if the "disparate impact" doctrine applies to the federal Fair Housing Act. That law makes it illegal to "refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
The congressionally written ill-defined phrase "otherwise make unavailable" is at the crux of the argument. Congress itself could redefine the phrase but Congress is incapable of any action.

Housing advocates contend that even absent actual discriminatory intent, current zoning laws create patterns of discrimination that facilitate deplorable living conditions plaguing "protected classes."
Texas will assert, as did the Chicago-based 7th Circuit Court when ruling in the "Arlington Heights" case, that "not every action which produces discriminatory effects is illegal."

There's little incentive for hard-nosed Texas to settle. The court will resolve the long-running dispute once and for all, probably on a 4-5 vote.

Which way the wind is blowing is likely known only to Justice Anthony Kennedy, the tribunal's usual swing vote. Expect a ruling by June.

Columnist Dick Spotswood of Mill Valley shares his views on local politics every Sunday and Wednesday in the IJ. Email him at