By Brian Hoop

As we reflect this week on the contributions of MLK Jr. to our nation’s struggles to advance civil rights, its important to acknowledge his role in the passage of the 1968 Fair Housing Act.

This landmark legislation outlaws discrimination in the renting, buying and financing of homes based on race, religion, national origin and gender. Subsequent expansions to the law went on to protect families with children and people with disabilities seeking housing.

Legal experts believe the Supreme Court, now with a clear conservative majority, may very well have one of its more powerful tools for fighting discrimination in their crosshairs. That tool is the “disparate impact standard,” a standard that looks not at the racial intent but the racial impact of a policy.

A recent CNN story by John Blake described, “The government doesn’t have to catch a landlord or mortgage lender being intentionally racist to conclude they’re discriminating. It looks at statistical evidence, which often reveals racial disparities.”

Seven Days leading to the Passage of the Fair Housing Act 50 years ago

I encourage you to watch Seven Days, an eight-minute documentary by the National Fair Housing Alliance retelling the story of MLK Jr’s legacy leading to the passage of the Fair Housing Act on its 50th anniversary.

Housing was a key part of King’s vision for economic justice. In 1966, King had launched a campaign to integrate housing in Chicago. At a rally in Soldier Field, he expounded on this dream. (Photo above is of King speaking at a housing rally in Chicago, 1966.)

“We are tired of living in rat-infested slums,” King said. “Now is the time to make real the promise of democracy. Now is the time to open the doors of opportunity to all of God’s children.”

The assassination of Martin Luther King Jr. on April 4, 1968 set off riots in many urban communities across the US. President Lyndon Johnson had been frustrated by his inability to improve fair housing conditions for people of color. Using the crisis to their advantage, the President, along with Senators Edward Brooke and Walter Mondale, were able to push through the housing bill through a reluctant Congress before the Civil Rights leader was laid to rest a week later.

Will Supreme Court eliminate “disparate impact” standard?

This past summer more than 100 fair housing and social justice organizations, along with 17 state attorneys general, appealed to the U.S. Department of Housing and Urban Development not to weaken disparate impact standards developed under the Obama administration. Civil rights advocates point out its used not only in housing law, but also other areas such as in education and employment regulation.

Critics counter it’s a contrived legal theory that strays from a law that was only meant to target intentional discrimination.

In a CityLab magazine article, “Is the Fight for Fair Housing Over?” author Kriston Capps explained, “A policy that concentrates low income housing vouchers in poor, minority neighborhoods, for example, is every bit as discriminatory as a whites-only listing – per a disparate impact reading of the Fair Housing Act.”

This brings us back to the Supreme Court, where a lawsuit, brought by a group of Texas nonprofits arguing HUD needs to enforce the Obama-era fair housing rule, may likely wind its way to the high court.

Retired Justice Anthony Kennedy had voted to preserve the standard during a housing case in 2015 recognizing the damage done by “unconscious prejudices and disguised animus.” Now the court is joined by his replacement, Brett Kavanaugh, who’s legal history suggests he’s a skeptic of disparate impact theory.

If the high court rules against this standard, “We’ll be headed back to the 1950’s when it comes to civil rights,” writes Nancy LeTourneau in a Washington Monthly column, “with racists given free rein to discriminate as long as they don’t make racially biased statements about it in public.”