The Law: Intent, Not Impact

The middle-class Chicago suburb of Arlington Heights, Ill., like many middle-class suburbs of many turbulent U.S. cities, has a zoning law that forbids apartment buildings or any other form of multifamily housing in many parts of the village. Not entirely coincidentally, the 1970 census showed that the town contained 64,857 whites and 27 blacks.

A Roman Catholic religious order, the Clerics of St. Viator, agreed in that same year to allow the Metropolitan Housing Development Corp., a nonprofit real estate developer, to build 20 two-story buildings with 190 apartments for low-and moderate-income families on 15 acres of its property. The village board blocked the deal by refusing to rezone the site for multifamily residences. The M.H.D.C. and three blacks eligible to live in the project sued Arlington Heights on the grounds, among others, that the refusal to rezone was unconstitutional racial discrimination.

Last week a five-man majority of the U.S. Supreme Court rejected that argument. The court ruled that it was not necessarily unconstitutional for a suburb to refuse to change zoning restrictions that in effect bar racially integrated low-cost housing projects. Said Justice Lewis Powell for the majority: “Official action will not be held unconstitutional solely because it results in a racially disproportionate impact . . . Proof of racially discriminatory intent or purpose is required to show a violation of the equal protection clause.” The court found no such intent.

The decision was an elaboration of a ruling last June, Washington v. Davis, in which the court set narrower restrictions in judging charges of racial discrimination under the Constitution. That case involved two black plaintiffs who had charged that a test given to police recruits in Washington, D.C., was discriminatory because a disproportionate number of blacks flunked. The court declared then that a plaintiff in such a case would have to show “a racially discriminatory purpose” and not simply racially unbalanced results.

Surprisingly, Justices William Brennan and Thurgood Marshall, the dissenters in Washington v. Davis, did not quarrel with Justice Powell’s interpretation of the Constitution in the Arlington Heights case. They dissented solely on the ground that it should be returned to the lower court to apply that interpretation. Observes Georgetown Law Professor Jerome Shuman: “The new decision continues the shift from judging the effects of discrimination to assessing the intent of the zoning laws, and intent is far more difficult to prove.” Adds the director of a fair-housing organization: “The decision raises the standards of proof much higher, maybe even impossibly high.”

The battle is by no means over, however. In a number of areas—New Jersey, for example—similar suits have been filed in state courts charging that restrictive zoning rules violate provisions of state constitutions. Nor did the Supreme Court let Arlington Heights —and other white middle-class enclaves —off the hook altogether. The Justices sent the case back to the court of appeals to consider another claim: that the refusal to rezone violated the federal Fair Housing Act of 1968. For some reason the court of appeals had ignored this charge, and that, said Justice Powell sternly, was “somewhat unorthodox.”

Meanwhile, the black population of Arlington Heights has increased—to 200.