Justice Thomas: Racial disparities don’t always hurt black people. Look at the NBA!

The Supreme Court on Thursday saved a key component of the Fair Housing Act of 1968, which protects against housing discrimination based on race, color, religion, sex, or national origin. But not every justice was happy with the decision.

Take, for example, Justice Clarence Thomas’s dissent, in which he argued that racial disparities alone are not a good way to measure discrimination. He pointed out the National Basketball Association (NBA) is mostly black yet it’s not considered racist, suggesting that not all racial disparities are considered discriminatory and unlawful:

Racial imbalances do not always disfavor minorities.… And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black.

Cherry-picking one sports league misses the broader point of laws like the Fair Housing Act: they’re supposed to protect from systemic issues — and there’s little question that African Americans face huge disparities on a systemic level. Black Americans have lower wages even after attaining higher education, they’re less likely to get calls back for job applications, they’re mired by people’s subconscious racial biases, they’re more likely to be shot and killed by police, and, yes, they still face residential segregation. When looking at the aggregate of these socioeconomic problems, it’s not hard to see why something like the Fair Housing Act might be needed to protect black people from widespread discrimination.

Right now, the Fair Housing Act protects minority Americans from such discrimination in housing by requiring them to merely prove a policy creates racial disparities — regardless of whether the intent was to discriminate. But Thomas’s interpretation would have forced plaintiffs in housing discrimination complaints to prove that policies and officials intended to discriminate. Since proving intent is much more difficult than showing a negative effect, Thomas’s interpretation could have made the Fair Housing Act unworkable — and prevented the law from protecting many people from housing discrimination.

(h/t: Suzy Khimm.)

Correction: The headline and text of this article originally went too far in their interpretation of Justice Clarence Thomas’s argument against the Fair Housing Act.