“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
All five Trump judges on the 5th Circuit judges – Judges James Ho, Don Willett, Kyle Duncan, Kurt Engelhardt, and Andrew Oldham – cast the majority of the nine votes that denied rehearing of a previous split decision by Engelhardt that significantly undermined the federal Fair Housing Act (FHA). Seven judges dissented, including several appointed by Presidents Reagan and George W. Bush. The full court’s 9-7 ruling was in The Inclusive Communities Project v. Lincoln Property Co.
As we previously reported, Judge Engelhardt’s 2-1 ruling in the Inclusive Communities Project (ICP) case in April decided that no claim could be brought under the FHA challenging a policy by apartment complexes in the Dallas area that refuse to rent to any applicants who want to use government vouchers to help pay their rent, even though that policy has a discriminatory impact on African Americans. Reagan appointee Eugene Davis strongly dissented, noting that Engelhardt’s ruling had “no precedent” and threatens to “eviscerate disparate impact claims under the FHA altogether.”
When the full 5th Circuit was asked to rehear the case, Engelhardt and the other four Trump appointees (Ho, Willett, Duncan, and Oldham) all said no. They clearly made the difference, since only four other judges on the court said no, while seven voted in favor of rehearing. These seven included three conservative judges appointed by Presidents Reagan or George W. Bush – Judge Davis along with Judge Catharina Haynes and Leslie Southwick (Bush).
Judge Haynes wrote a strong dissent in which all seven dissenters joined. She began by pointing out that although both the 5th Circuit and the Supreme Court had recognized that practices with a disparate impact on minorities violate the FHA in an earlier decision, the 2-1 Engelhardt ruling “renders that decision almost meaningless” because of the “impossible pleading standard” it imposed on those bringing FHA discrimination cases. In particular, she explained, Engelhardt’s ruling made the burden on someone bringing a disparate impact claim “nearly insurmountable” by “requiring immutable proof” of discriminatory impact when a complaint is first filed, “rather than plausible allegations” of such impact that can be tested in discovery and later proceedings, as precedent provides.
Judge Haynes went on for 12 pages to explain what was wrong with Engelhardt’s ruling. She noted that ICP’s complaint clearly alleged both types of discriminatory impact that should have allowed its fair housing case to go forward. These include both the contention that the no-vouchers policy “perpetuates segregation” by preventing African American households from moving to predominantly white areas with apartments they could afford if vouchers were accepted, forcing them instead to remain in “racially concentrated and predominantly minority areas of high poverty,” and the contention that the policy has a “disparate impact” on African Americans, who make up 80 percent of voucher holders in the Dallas area. In fact, she pointed out, “every federal court” to address whether a plaintiff could bring an FHA claim based on allegations of a “statistical disparity” and a policy causing that disparity has “held for the plaintiff,” except for this case.
Judge Haynes specifically noted the impact of Engelhardt’s ruling in the 5th Circuit, which is “full of large cities that contain numerous locations housing large, minority populations.” She concluded that the opinion, which not a single Trump judge was willing to reconsider, “moves us backwards on the pathway to equality and integration.”