Environmental Justice and Title VII of the Civil Rights Act of 1968 (The Fair Housing Act)
By Alice L. Brown and Kevin Lyskowski
INTRODUCTION
Litigation challenging environmental inequities in low-income communities and communities of color has relied upon a number of constitutional and statutory provisions. These provisions have included the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, Title VI of the Civil Rights Act of 1964, and various environmental statutes and regulations.
All of these legal avenues have shortcomings. It is difficult for environmental justice litigants to find a “smoking gun” that shows a discriminatory motive, as is required for Equal Protection Clause claims. Although Title VI is more useful, it only establishes nondiscrimination requirements for federally funded programs and activities. Environmental statutes are also subject to restrictions. Some have very short statutes of limitation that may expire before affected communities learn of an environmental threat or are able to obtain legal representation. Also, the only remedy offered by some environmental statutes is a re-opening of the public hearing process, which may not lead to ultimate relief for the affected community.
These and other concerns have prompted interest in another possible weapon in the battle for environmental justice: Title VIII of the Civil Rights Act of 1968, commonly called the Fair Housing Act. Enacted within a month after the release of the Kerner Commission Report and the assassination of Dr. Martin Luther King, the Fair Housing Act declared that the United States must “provide within constitutional limitations for Fair Housing throughout the [nation].” The Act prohibits discrimination based on race, color, or national origin in the terms, conditions, privileges, services, or facilities connected with sale or rental housing. The Supreme Court has mandated that courts use “a generous construction” of Title VIII to achieve the policy it embodies. Courts following this mandate have applied the statute to a range of discriminatory practices, including racial steering, race-based appraisal practices, redlining, exclusionary zoning and planning, public housing site selection and demolition, and discriminatory community development activities.
Environmental justice advocates may find the Fair Housing Act useful for several reasons. First, the Act has procedural and jurisdictional advantages over environmental statutes. One such benefit is that Fair Housing Act claims are often tried de novo; thus, unlike environmental statutes which usually allow a court to review only the record compiled by an agency, the Fair Housing Act does not normally limit the court to the administrative record. This may give environmental justice plaintiffs a greater opportunity to put forward grievances and may allow plaintiffs to conduct discovery and present evidence as part of judicial proceedings. Another benefit is that Title VIII, unlike Title VI, reaches defendants without regard to their federal funding. Finally and perhaps most importantly, a violation of the Fair Housing Act, unlike the Equal Protection Clause, does not require a finding of intentional discrimination. A plaintiff need only prove that a defendant's conduct actually or predictably results in racial discrimination (i.e., that it has a discriminatory impact). The Supreme Court has tacitly approved this discriminatory effects standard, and it has been adopted in some form by nearly every circuit.
This article considers the usefulness of Title VIII for environmental justice plaintiffs. Section II is macro-oriented; it looks broadly at two environmental justice cases that have used Title VIII successfully. Section III is micro-oriented; it looks closely at one of Title VIII's key anti-discrimination provisions in order to help define the statute's potential, and its limits, for achieving environmental justice.
Litigation challenging environmental inequities in low-income communities and communities of color has relied upon a number of constitutional and statutory provisions. These provisions have included the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, Title VI of the Civil Rights Act of 1964, and various environmental statutes and regulations.
All of these legal avenues have shortcomings. It is difficult for environmental justice litigants to find a “smoking gun” that shows a discriminatory motive, as is required for Equal Protection Clause claims. Although Title VI is more useful, it only establishes nondiscrimination requirements for federally funded programs and activities. Environmental statutes are also subject to restrictions. Some have very short statutes of limitation that may expire before affected communities learn of an environmental threat or are able to obtain legal representation. Also, the only remedy offered by some environmental statutes is a re-opening of the public hearing process, which may not lead to ultimate relief for the affected community.
These and other concerns have prompted interest in another possible weapon in the battle for environmental justice: Title VIII of the Civil Rights Act of 1968, commonly called the Fair Housing Act. Enacted within a month after the release of the Kerner Commission Report and the assassination of Dr. Martin Luther King, the Fair Housing Act declared that the United States must “provide within constitutional limitations for Fair Housing throughout the [nation].” The Act prohibits discrimination based on race, color, or national origin in the terms, conditions, privileges, services, or facilities connected with sale or rental housing. The Supreme Court has mandated that courts use “a generous construction” of Title VIII to achieve the policy it embodies. Courts following this mandate have applied the statute to a range of discriminatory practices, including racial steering, race-based appraisal practices, redlining, exclusionary zoning and planning, public housing site selection and demolition, and discriminatory community development activities.
Environmental justice advocates may find the Fair Housing Act useful for several reasons. First, the Act has procedural and jurisdictional advantages over environmental statutes. One such benefit is that Fair Housing Act claims are often tried de novo; thus, unlike environmental statutes which usually allow a court to review only the record compiled by an agency, the Fair Housing Act does not normally limit the court to the administrative record. This may give environmental justice plaintiffs a greater opportunity to put forward grievances and may allow plaintiffs to conduct discovery and present evidence as part of judicial proceedings. Another benefit is that Title VIII, unlike Title VI, reaches defendants without regard to their federal funding. Finally and perhaps most importantly, a violation of the Fair Housing Act, unlike the Equal Protection Clause, does not require a finding of intentional discrimination. A plaintiff need only prove that a defendant's conduct actually or predictably results in racial discrimination (i.e., that it has a discriminatory impact). The Supreme Court has tacitly approved this discriminatory effects standard, and it has been adopted in some form by nearly every circuit.
This article considers the usefulness of Title VIII for environmental justice plaintiffs. Section II is macro-oriented; it looks broadly at two environmental justice cases that have used Title VIII successfully. Section III is micro-oriented; it looks closely at one of Title VIII's key anti-discrimination provisions in order to help define the statute's potential, and its limits, for achieving environmental justice.
