In a sharply divided 5-4 ruling on Thursday, the Supreme Court upheld the use of disparate impact claims under the 1968 Fair Housing Act, finding that policies and practices with discriminatory effects can be challenged under the law, even when there was no intent to discriminate. Fair housing advocates said the decision will enable them to continue rooting out racial discrimination at a time when overt bias has largely been replaced by more unconscious or implicit forms of prejudice. But Justice Clarence Thomas argued that racial disparities often appear without the help of discrimination -- and sometimes to the benefit of the minority group -- citing the racial makeup of the NBA as proof.
"Racial imbalances do not always disfavor minorities," Thomas wrote, joining Justice Samuel Alito in his dissent. "[I]n our own country, 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."
Thomas went on to express his concern that using the presence of racial disparities as evidence of discrimination would lead to unconstitutional "racial balancing" that might be "limited to only some groups."
Racial imbalances in the NBA may indeed work out in favor of the small number of black people who count themselves as professional basketball players. But systemic racial imbalances in the housing and lending markets certainly do not work out for the rest of the population. Decades of segregation have helped concentrate poverty in minority neighborhoods. And in communities with large percentages of black and Hispanic residents, you see fewer economic and employment opportunities, lower-quality education, lower levels of public safety, and less access to medical care, healthy food and public transportation.
In other words, racial imbalance in housing is regularly accompanied by substantial socioeconomic imbalance, which, according to the Supreme Court's decision on Thursday, can be challenged as discriminatory regardless of intent.