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Small town uses Supreme Court’s affirmative action ruling to attack California’s housing law


Daily Caller News Foundation

A California city is citing the Supreme Court’s affirmative action ruling to fight an affordable housing project, alleging that the state’s housing law is discriminatory.

The City of La Cañada Flintridge argued in a recent court filing that it does not need to comply with a law that requires cities to “explicitly address, combat, and relieve disparities resulting from past patterns of segregation” because the Supreme Court’s June ruling in Students for Fair Admissions v. Harvard outlawed “government-imposed discrimination based on race.” The housing project the city opposes would be a five-story building with 80 residential units located on a 1.3-acre site near the city’s main commercial road, according to The Real Deal.

The city’s case tests the state’s “builder’s remedy,” a noncompliance penalty that enables developers of affordable units to override city zoning standards when the city housing plans have not gained state approval, according to the San Francisco Chronicle.

A Los Angeles County Superior Court judge ruled in July that the city is subject to the builder’s remedy after it missed the deadline for state compliance, according to The Real Deal. Now, the city argues in part, that it does not need to comply under the Supreme Court’s recent ruling, claiming the state’s law is unconstitutional because it “requires affirmative action.”

“Like the preferences at issue in Harvard, the preferences here are not sufficiently connected to the alleged justifications to withstand strict scrutiny, whether such are asserted by Petitioner or identified in [the Affirmatively Furthering Fair Housing law],” the filing states.

California passed its Affirmatively Furthering Fair Housing law in 2018 to “combat housing discrimination, eliminate racial bias, undo historic patterns of segregation, and lift barriers that restrict access in order to foster inclusive communities and achieve racial equity,” according to California’s Department of Housing and Community Development (HCD). The city has so far failed to gain state approval for its plan to address housing needs as required by the law, according to the San Francisco Chronicle.

Heritage Foundation senior legal fellow GianCarlo Canaparo told the Daily Caller News Foundation the case most relevant to the city would actually be the Supreme Court’s decision in City of Richmond v. J.A. Croson, assuming California’s law actually requires cities to give preference to certain race and identity groups as it appears.

In Croson, the Supreme Court found that racially discriminatory laws can be used only when it can be proved the city “is responsible for a specific past discriminatory action and is giving the discriminatory remedy to the people it harmed,” disallowing their use to remedy general “systemic” discrimination, Canaparo explained.

“So the question is: did La Cañada Flintridge discriminate against people in the past, and does its fair housing policy give those people a remedy?” Canaparo said. “The state law seems to order local governments to give preferences to many different identity groups, so to pass constitutional muster in this case, La Cañada Flintridge would have had to discriminate against all of them. The Supreme Court struck down the racial preference in Croson because it too included groups that could show no history of discrimination.”

“With respect to Students for Fair Admissions, the city is correct that the case helps it, but Croson is more on point,” he continued. “Among other things, Students for Fair Admissions recognized how arbitrary our racial categories are, and their arbitrariness was a factor in the Court prohibiting their use in college admissions.”

The City of La Cañada Flintridge, the developer’s lawyer and the California Department of Housing and Community Development did not immediately respond to requests for comment.

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Republished with permission from Daily Caller News Foundation

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