By Joan Biskupic
WASHINGTON (Reuters) - Civil rights advocates took extraordinary steps over the last three months to persuade the city of St. Paul, Minn., to withdraw a fair-housing case the U.S. Supreme Court had already agreed to hear, reflecting their expressed fears about the court under Chief Justice John Roberts.
Their successful effort, actively joined by the U.S. Justice Department and former Vice President Walter Mondale, underscores how liberals today often try to avoid the court while conservatives believe the timing is right for them.
The case that was to be heard on Wednesday, Magner v. Gallagher, centered on local housing-code enforcement but would have tested federal Fair Housing Act protections for racial minorities against predatory lending and other abusive mortgage practices.
"There was a real concern that this court would weaken effective enforcement" of the act, said Wade Henderson, president of the Leadership Conference on Civil and Human Rights.
The St. Paul episode stands out as the first major civil rights matter in years to be withdrawn after the justices had agreed to take it up. Dismissal of a Supreme Court case through either a settlement by the parties or, in this situation, a decision by a petitioner to drop its appeal, is extremely rare. It has happened only twice this term, and last session not at all.
St. Paul's actions arise in the context of a changed court. After Roberts became chief justice in September 2005 and Justice Samuel Alito succeeded moderate conservative Sandra Day O'Connor in January 2006, the high court moved further to the right, notably in disputes over race-based policies and abortion rights. A five-justice conservative majority on the nine-member court also reversed precedent in the politically charged campaign-finance area, as with Citizens United v. Federal Election Commission, which opened the door to more corporate money in elections.
The St. Paul case began after the city stepped up enforcement of its housing code against conditions such as rodent infestation, missing dead-bolt locks and inadequate heat. In a set of lawsuits challenging the city's action, landlords contended that "selective" code enforcement was driving up their costs and forcing them to abandon or sell buildings.
In the part of their case that prompted national civil rights leaders to intervene, the landlords claimed the city was engaged in illegal housing discrimination because the tough enforcement ended up mostly hurting African Americans and other racial minorities who make up the majority of low-income renters. The landlords, in an unusual twist on a fair-housing claim, said the city's enforcement was driving them to sell or abandon property, exacerbating the shortage of rentals for racial minorities.
At issue before the Supreme Court was the use of "disparate impact" claims targeting seemingly neutral practices that have a discriminatory effect. Such claims have for decades been a way that lawyers representing African Americans and other minorities tried to attack policies that do not directly discriminate yet have the effect of putting certain groups of people at a disadvantage.
The Fair Housing Act, passed in 1968 to prohibit bias based on race in the sale or rental of housing and related services, does not explicitly allow such disparate-impact claims.
Yet lower appeals courts, including the U.S. Court of Appeals for the Eighth Circuit in the St. Paul case, have interpreted the act broadly and declared such "disparate impact" claims covered by the act. Federal housing officials have also said the law prohibits practices that have a discriminatory effect even when no intention to discriminate exists.
The city, backed by conservative groups such as the Eagle Forum and Pacific Legal Foundation, had appealed to the Supreme Court, urging that only direct bias violated the law.
CIVIL RIGHTS CONCERN
When the Supreme Court announced on November 7 that it would hear St. Paul's appeal, national civil rights advocates and lawyers in the Justice Department civil rights division became concerned. They feared a potent weapon against housing bias could disappear, particularly at a time when it was being used against subprime lending and other mortgage abuses.
Under the disparate-impact theory, judges can examine aggregate data on lending practices to find disparities that might otherwise remain concealed. The approach, the American Civil Liberties Union told the court in a filing, "is uniquely powerful as a means of smoking out illegitimate discrimination."
Henderson, of the Leadership Conference on Civil and Human Rights, flew to St. Paul to meet with Mayor Chris Coleman to encourage the city to drop its appeal. The civil rights coalition had submitted a "friend of the court" brief against the city's appeal.
Henderson said he told the mayor the local case could have large national consequences. "This court has shown a real propensity to rule against remedies that had been used by civil rights advocates, especially those related to race-based remedies," Henderson said this week.
Mayor Coleman referred requests for an interview to City Attorney Sara Grewing, who said Coleman became convinced over a series of conversations with advocates such as Henderson and those in the U.S. Justice Department that the city should seriously consider ending its appeal related to Fair Housing Act claims.
Assistant Attorney General Thomas Perez, who runs the U.S. Justice Department civil rights division, personally called Coleman and Grewing, Grewing said. Perez emphasized the use of the disparate-impact theory in mortgage cases, Grewing said.
Such Justice Department back-channel calls rarely become public, and department officials declined to provide details of Perez's involvement. Its filing in the case had stressed "the courts of appeals for decades have uniformly and correctly concluded" that racial minorities could sue when disproportionately hurt by a seemingly neutral law.
Former Vice President Mondale became involved after University of Minnesota law professor Myron Orfield, an expert on race and poverty issues, alerted him to the potential consequences of the city's case.
Mondale, who as a U.S. senator from Minnesota in 1968 was a lead author of the Fair Housing Act, said in an interview that he understood the risk to the act and agreed to call Mayor Coleman, who is a friend.
"I said I would hope that there's some way of working on this and not risking a Supreme Court decision that ruins the act," Mondale said. Of a disparate-impact claim, he said: "It's the only way that you can really effectively enforce laws against housing discrimination."
CITY PULLS OUT
On February 10, the city announced it was pulling the plug. Coleman said in a statement that if the city had prevailed in its plea to the high court to prohibit disparate-impact claims, an "important tool in fighting predatory lending and economic injustice" could be lost.
The Supreme Court officially dismissed the case without comment on February 14. The lawsuit brought by the landlords against St. Paul officials will now go to trial barring any local settlement. Grewing said officials remain convinced they will be able to defend the housing code enforcement.
Thomas Goldstein, a Washington, D.C., lawyer who represented St. Paul landlords after the case reached the high court, had urged the justices to dismiss it and avoid setting any rule that would have conflicted with the lower court trend.
"We're perfectly satisfied," Goldstein said of the turn of events. "These plaintiffs weren't here to set a national precedent. Once the Supreme Court stepped in, there was a chance they could lose" if it changed the rules and barred their claim.
Kevin Decker, a Minneapolis lawyer who sided with the city and filed a brief on behalf of the International Municipal Lawyers Association, said dismissal of the case was a lost opportunity for a clear national standard. "There's a lack of certainty that cities face," he said.
AVOIDING THE COURT
The St. Paul case is conspicuous because of how far it got and the fact it was removed just weeks before the justices were to hear it.
Yet in recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
The justices on February 21 agreed to hear the case of student Abigail Fisher and to revisit a 2003 ruling, written by Justice O'Connor, allowing universities to consider race in admissions. The case will be heard in the term that begins in October.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
(Reporting by Joan Biskupic; Editing by Howard Goller)