Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/36

This page has been validated.

Thomas, J., dissenting


Griggs' disparate-impact doctrine defies not only the statutory text, but reality itself. In their quest to eradicate what they view as institutionalized discrimination, disparate-impact proponents doggedly assume that a given racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside of it. See T. Sowell, Intellectuals and Race 132 (2013) (Sowell). That might be true, or it might not. Standing alone, the fact that a practice has a disparate impact is not conclusive evidence, as the Griggs Court appeared to believe, that a practice is "discriminatory," 401 U. S., at 431. "Although presently observed racial imbalance might result from past [discrimination], racial imbalance can also result from any number of innocent private decisions." Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 750 (2007) (Thomas, J., concurring) (emphasis added).[1] We should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent. As best I can tell, the reason for this wholesale inversion of our law’s usual approach is the unstated—and unsubstantiated—assumption that, in the absence of discrimination, an institution’s racial makeup would mirror that of society. But the absence of racial disparities in multi-

  1. It takes considerable audacity for today’s majority to describe the origins of racial imbalances in housing, ante, at 5–6, without acknowledging this Court’s role in the development of this phenomenon. In the past, we have admitted that the sweeping desegregation remedies of the federal courts contributed to "'white flight'" from our Nation's cities, see Missouri v. Jenkins, 515 U. S. 70, 95, n. 8 (1995); id., at 114 (Thomas, J., concurring), in turn causing the racial imbalances that make it difficult to avoid disparate impact from housing development decisions. Today’s majority, however, apparently is as content to rewrite history as it is to rewrite statutes.