June 29, 2015 Practice Points

More Than Skin Deep

By Dustin W. Osborne

On Thursday, June 25, the Supreme Court upheld the use of disparate impact claims under the 1968 Fair Housing Act in a 5–4 ruling. It found that housing policies and practices with discriminatory outcomes can be challenged under the Act, even if there was no intent to discriminate. Justice Clarence Thomas dissented, however, arguing that racial disparities often appear without the assistance of discrimination and may sometimes benefit minority groups.

In support of his dissent, Justice Thomas cited the NBA, explaining that "for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence."

Additionally, Justice Thomas quoted conservative economist Thomas Sowell to explain how some minority groups end up running the economies of entire nations. He then provided examples of minorities who "have owned or directed more than half of whole industries in particular nations[,]" such as "the Chinese in Malaysia" or "Jews in Poland" to support his argument.

Finally, Justice Thomas expressed his concern that using the mere presence of racial disparities as evidence of discrimination would result in unconstitutional "racial balancing" that might be "limited to only some groups." In a particularly scathing footnote, he went on to note that "[i]t takes considerable audacity for today's majority to describe the origins of racial imbalances in housing . . . without acknowledging this Court's role in the development of this phenomenon."

Keywords: expert witnesses, litigation, NBA, racial disparity, minority, Clarence Thomas, discrimination, Fair Housing Act

Dustin W. Osborne is with Goldberg Segalla in Buffalo, New York.


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