No. 11-1507

In the

Supreme Court of the United States--------------------------------

TOWNSHIP OF MOUNT HOLLY,NEW JERSEY, ET AL.,

Petitioners,v.

MT. HOLLY GARDENSCITIZENS IN ACTION, INC., ET AL.,

Respondents.--------------------------------

ON WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT===============

BRIEF OF SOCIOLOGISTS, SOCIAL ANDORGANIZATIONAL PSYCHOLOGISTS, AND

LEGAL SCHOLARS AS AMICI CURIAESUPPORTING RESPONDENTS

===============

EVA PATERSONCounsel of Record

ALLISON S. ELGARTEQUAL JUSTICE SOCIETY1999 Harrison Street,

Suite 800Oakland, CA 94612(415) 288-8700epaterson@

equaljusticesociety.org

DAVID J. BERGERSAVITH S. IYENGARJASON B. GUMERJASMINE M. OWENSRO KHANNAWILSON SONSINI

GOODRICH & ROSATI, PCOne Market Street,

Suite 3300San Francisco, CA 94105(415) 947-2000siyengar@wsgr.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether disparate impact claims arecognizable under Section 804(a) of the Fair HousingAct (“FHA” or the “Act”), 42 U.S.C. § 3604(a),particularly in light of recent social science researchshowing that implicit biases contribute to housingdiscrimination and otherwise evade judicial scrutiny.

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TABLE OF CONTENTSPage

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES .......................................v

IDENTITY AND INTEREST OF AMICICURIAE.......................................................................1

SUMMARY OF ARGUMENT.....................................1

ARGUMENT ...............................................................3

I. THE FHA’S DISPARATE IMPACTSTANDARD IS NECESSARY TOCOMBAT DISCRIMINATION ........................3

A. Congress Enacted the FHA toEradicate Housing Discrimination.............3

1. Congress and Courts Have LongRecognized the FHA as a Meansto Remedy the Harmful Effects ofHousing Discrimination ........................3

2. Housing Segregation StillPersists in the United States ................5

3. Housing Segregation and RacialIsolation Have DevastatingEffects on Communities ........................6

B. Implicit Biases Perpetuate HousingDiscrimination and Segregation.................7

1. Implicit Biases AffectPerceptions of Disorder,Criminality, and Blight .........................8

a. Individuals perceive disorderin otherwise identicalneighborhoods solely due tothe presence of minoritygroups. ..............................................9

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TABLE OF CONTENTS—ContinuedPage

b. Individuals associate criminalactivity with neighborhoodsbased on the presence ofminority groups. .............................11

c. Perceptions of disorder andcriminality inform blightdesignations that motivatemunicipal decision-making. ...........12

2. Implicit Biases AffectPerceptions of Minorities and theSpaces They Inhabit ............................17

a. Negative race-spaceassociations and stereotypingperpetuate segregation,adversely affect land value,and lead to disparities inharmful land use. ...........................17

b. Raced preferences in housingtransactions have devastatingeffects on minorityhomeseekers and show thatminorities are perceived asundesirable residents. ....................21

C. Social Science Research Confirmsthat the Disparate Impact StandardIs Necessary to Address ImplicitBiases and Attendant Harms ...................27

1. Segregation Reinforces ImplicitBiases that Drive HousingDiscrimination, and IntegratedCommunities Combat TheseBiases ...................................................27

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TABLE OF CONTENTS—ContinuedPage

2. Courts Need the DisparateImpact Standard to Address AllForms of Discrimination,Including Implicit Bias........................31

CONCLUSION..........................................................37

APPENDIX: LIST OF AMICI CURIAE ...................38

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TABLE OF AUTHORITIESPage(s)

CASES

Berman v. Parker, 348 U.S. 26 (1954)............... 13, 35

Doe v. City of Butler, 892 F.2d 315 (3d Cir.1989)............................................................... 33

Furnco Constr. Corp. v. Waters, 438 U.S. 567(1978) ............................................................. 32

Gladstone Realtors v. Vill. of Bellwood, 441U.S. 91 (1979) .................................................. 4

Metro. Hous. Dev. Corp. v. Vill. of ArlingtonHeights, 558 F.2d 1283 (7th Cir. 1977)......... 31

Smith v. Anchor Bldg. Corp., 536 F.2d 231(8th Cir. 1976)................................................ 34

Thomas v. Troy City Bd. of Educ., 302 F.Supp. 2d 1303 (M.D. Ala. 2004) .................... 15

Trafficante v. Metropolitan Life InsuranceCo., 409 U.S. 205 (1972) .............................. 4, 5

STATUTES

42 U.S.C. § 3604(a)................................................ i, 31

Pub. L. No. 90-284, Title VIII, 82 Stat. 81(1968) ............................................................... 3

LEGISLATIVE MATERIALS

114 Cong. Rec. 2524 (1968)........................................ 4

114 Cong. Rec. 2529 (1968)........................................ 3

114 Cong. Rec. 3133 (1968)........................................ 4

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114 Cong. Rec. 3422 (1968)........................................ 5

ADMINISTRATIVE MATERIALS

HUD Executive Summary 2013 .............................. 26

U.S. Census Bureau, 2010 Census Briefs,Overview of Race and Hispanic Origin:2010, Table 1 (Mar. 2011), available athttp://tinyurl.com/3gdko8e .............................. 5

OTHER AUTHORITIES

Adrian G. Carpusor & William E. Loges,Rental Discrimination and Ethnicity inNames, 36 J. Applied Soc. & Psychol.934 (2006) .......................................... 22, 23, 27

Andrew Hanson, Zackary Hawley & ArynTaylor, Subtle Discrimination in theRental Housing Market: Evidence fromE-mail Correspondence withLandlords, 20 J. Housing Econ. 276(2011) ................................................. 23, 24, 25

Anthony G. Greenwald & Linda H. Krieger,Implicit Bias: Scientific Foundations,94 Calif. L. Rev. 945 (2006).................. 7, 8, 20,

32, 35

Br. for Amici Curiae Am. Civ. Rights Union........... 25

Br. for Amicus Curiae Institute for Justice ............ 15

Br. for Appellees at 36, Mt. Holly Citizens inAction, Inc. v. Twp. of Mount Holly,2011 WL 2442671 (3d Cir. June 10,2011)................................................................. 2

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TABLE OF AUTHORITIES—ContinuedPage(s)

Courtney M. Bonam, Jennifer L. Eberhardt &Hilary B. Bergsieker, Polluting BlackSpace 9 (June 30, 2013).................... 10, 12, 18,

19, 20

Craig Gurian, Mapping and Analysis of NewData Documents Still-SegregatedAmerica, Remapping Debate (Jan. 18,2011), available athttp://tinyurl.com/4ac3k5z .............................. 6

Dick M. Carpenter & John K. Ross, TestingO’Connor and Thomas: Does the Use ofEminent Domain Target Poor andMinority Communities?, 46 Urb. Stud.2447 (2009) .................................................... 15

Dorothy E. Roberts, Foreword: Race,Vagueness, and the Social Meaning ofOrder-Maintenance Policing, 89 J.Crim. L. & Criminology 775 (1999) .............. 15

Douglas S. Massey & Garvey Lundy, Use ofBlack English and RacialDiscrimination in Urban HousingMarkets: New Methods and Findings,36 Urb. Aff. Review 452 (2001) ..................... 22

Elizabeth A. Phelps et al., Performance onIndirect Measures of Race EvaluationPredicts Amygdala Activation, 12 J.Cognitive Neuroscience 729 (2000)............... 28

Elizabeth Anderson, The Imperative ofIntegration 3 (2010)......................................... 6

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TABLE OF AUTHORITIES—ContinuedPage(s)

Elizabeth Page-Gould, Rodolfo Mendoza-Denton & Linda R. Tropp, With a LittleHelp From My Cross-Group Friend:Reducing Anxiety in IntergroupContexts Through Cross-GroupFriendship, 95 J. Personality & Soc.Psychol. 1080 (2008)...................................... 29

Elizabeth Page-Gould, Wendy B. Mendes &Brenda Major, Intergroup ContactFacilitates Physiological RecoveryFollowing Stressful IntergroupInteractions, 46 J. Experimental Soc.Psychol. 854 (2010).................................. 28, 29

Frank Van Overwalle, Social Cognition andthe Brain: A Meta-Analysis, 30 Hum.Brain Mapping 829 (2009) ............................ 28

George Kelling & Catherine Coles, FixingBroken Windows: Restoring Order andReducing Crime in Our Communities(1996) ............................................................. 13

James A. Kushner, Apartheid in America: AnHistorical and Legal Analysis ofContemporary Racial Segregation inthe United States 37 (1980) ....................... 6, 14

James Q. Wilson & George Kelling, The Police& Neighborhood Safety: BrokenWindows, Atl. Monthly, Mar. 1982............... 13

Jan Ondrich, Alex Stricker & John Yinger, DoLandlords Discriminate? The In-cidence and Causes of Racial Discrim-ination in Rental Housing Markets, 8 J.Housing Econ. 185 (1999) ................. 24, 25, 26

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TABLE OF AUTHORITIES—ContinuedPage(s)

Jim Blascovich, Wendy B. Mendes, Sarah B.Hunter, Brian Lickel & Neneh Kowai-Bell, Perceiver Threat in SocialInteractions With Stigmatized Others,80 J. Personality & Soc. Psychol. 253(2001) ....................................................... 28, 29

John F. Dovidio et al., Why Can’t We Just GetAlong, Interpersonal Biases andInterracial Distrust, 8 Cultural Diversity& Ethnic Minority Psychol. 88 (2002) ........ 7, 33

John R. Logan & Brian J. Stults, ThePersistence of Segregation in theMetropolis: New Findings from the2010 Census, US2010 Project (Mar. 24,2011), available athttp://tinyurl.com/ofs4y6m.............................. 5

John T. Jost et al., The Existence of ImplicitBias is Beyond Reasonable Doubt: ARefutation of Ideological andMethodological Objections andExecutive Summary of Ten StudiesThat No Manager Should Ignore, 29Res. in Organizational Behav. 39(2009) ............................................................... 7

John Yinger, Closed Doors, OpportunitiesLost: The Continuing Cost of HousingDiscrimination ch. 6 (1995)........................... 26

John Yinger, Evidence on Discrimination inConsumer Markets, 12 J. Econ. Persp.23 (1998) .................................................. 24, 25

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TABLE OF AUTHORITIES—ContinuedPage(s)

Jon C. Dubin, From Junkyards toGentrification: Explicating a Right toProtective Zoning in Low-IncomeCommunities of Color, 77 Minn. L. Rev.739 (1993) ...................................................... 14

Lincoln Quillian & Devah Pager, BlackNeighbors, Higher Crime? The Role ofRacial Stereotypes in Evaluations ofNeighborhood Crime, 107 Am. J. Soc.717 (Nov. 2001).............................................. 12

Lincoln Quillian & Devah Pager, EstimatingRisk: Stereotype Amplification and thePerceived Risk of CriminalVictimization, 73 Soc. Psychol. Q. 79(2010) ....................................................... 11, 12

Linda H. Krieger, The Content of OurCategories: A Cognitive Bias Approachto Discrimination and EqualEmployment Opportunity, 47 Stan. L.Rev. 1161 (1995) ............................................ 32

Lu-in Wang, Race as Proxy in Law & Society:Situational Racism and Self-FulfillingStereotypes, 53 DePaul L. Rev. 1013(Spring 2004) .................................................. 11

Margery A. Turner & Stephen L. Ross, “HowRacial Discrimination Affects theSearch for Housing,” in The Geographyof Opportunity: Race and HousingChoice in Metropolitan America 81(Xavier de Souza Briggs, ed., 2005) .............. 21

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TABLE OF AUTHORITIES—ContinuedPage(s)

Maria Krysan, Community Undesirability inBlack and White: Examining RacialResidential Preferences ThroughCommunity Perceptions, 49 Soc. Probs.521 (2002) ...................................................... 19

Maria Krysan, Kyle Crowder & MichaelBader, “Pathways to ResidentialSegregation,” in Choosing HomesChoosing Schools: ResidentialSegregation and the Search for a GoodSchool 12 (Annette Lareau & KimberlyGoyette, eds.) (forthcoming 2014) .... 18, 19, 20,

21, 26

Maria Krysan, Reynolds Farley & Mick P.Couper, In the Eye of the Beholder, 5Du Bois Rev.: Soc. Sci. Res. on Race 5(2008) ....................................................... 10, 18

Maria Krysan, Reynolds Farley, Mick P.Couper & Tyrone A. Forman, DoesRace Matter in NeighborhoodPreferences? Results from a VideoExperiment, 115 Am. J. Soc. 527 (2009) . 10, 18

Maria Krysan, Whites Who Say They’d Flee:Who Are They and Why Would TheyLeave?, 39 Demography 675 (2002) .............. 11

Melissa Hart, Subjective Decisionmaking andUnconscious Discrimination, 56 Ala. L.Rev. 741 (2005) ..................................... 7, 8, 14,

15, 32, 33, 34

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TABLE OF AUTHORITIES—ContinuedPage(s)

Michelle W. Anderson & Victoria C. Plaut,“Implicit Bias and the Resilience ofSpatial Colorlines,” in Justin D.Levinson & Robert J. Smith, ImplicitRacial Bias Across the Law 27 (2012) ... 5, 6, 9,

10, 11, 12, 15, 17, 20

Negin R. Toosi, Nalini Ambady, Laura G.Babbitt & Samuel R. Sommers, DyadicInterracial Interactions: A Meta-Analysis, 138 Psychol. Bull. 1 (2012)..30, 32, 33

Nicole S. Garnett, Relocating Disorder, 91 Va.L. Rev. 1075 (2005)........................................ 15

Nicole Stelle Garnett, Ordering the City,Land Use, Policing, and the Restorationof Urban America 55 (2009) ...................... 9, 16

Nilanjana Dasgupta & Luis M. Rivera, WhenSocial Context Matters: The Influence ofLong-Term Contact and Short-TermExposure to Admired OutgroupMembers on Implicit Attitudes andBehavioral Intentions, 26 SocialCognition 112 (2008) ..................................... 29

Sergi G. Costafreda et al., Predictors ofAmygdala Activation During theProcessing of Emotional Stimuli: AMeta-Analysis of 385 PET and fMRIStudies, 58 Brain Res. Rev. 57 (2008) .......... 28

Robert D. Bullard et al., Toxic Wastes andRace at Twenty: 1987-2007 xii (Mar.2007), available at http://tinyurl.com/ohs83c8 .......................................................... 20

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TABLE OF AUTHORITIES—ContinuedPage(s)

Robert J. Sampson & Stephen W.Raudenbusch, Seeing Disorder:Neighborhood Stigma and the SocialConstruction of “Broken Windows”, 67Soc. Psychol. Q. 319 (2004) ....................... 9, 10

Seok Joon Choi, Jan Ondrich & John Yinger,Do Rental Agents Discriminate AgainstMinority Customers? Evidence FromThe 2000 Housing DiscriminationStudy, 14 J. Housing Econ. 1 (2005)............. 24

Swati Prakash, Racial Dimensions of PropertyValue Protection Under the FairHousing Act, 101 Calif. L. Rev. 1437(2013) ............................................................. 13

Thomas F. Pettigrew & Linda R. Tropp,A Meta-Analytic Test of IntergroupContact Theory, 90 J. Personality &Soc. Psych. 751 (2006) ................................... 30

Thomas Purnell, William Idsardi & JohnBaugh, Perceptual and PhoneticExperiments on American EnglishDialect Identification, 18 J. Language& Soc. Psychol. 10 (1999) .............................. 22

Wendell E. Pritchett, The “Public Menace” ofBlight: Urban Renewal and the PrivateUses of Eminent Domain, 21 Yale L. &Pol’y Rev. 1 (2003) ......................................... 13

William C. Apgar & Allegra Calder, “TheDual Mortgage Market: ThePersistence of Discrimination inMortgage Lending,” in The Geographyof Opportunity: Race and HousingChoice in Metropolitan America 101(Xavier de Souza Briggs, ed., 2005) .............. 25

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William H. Frey, Census Data: Blacks andHispanics Take Different SegregationPaths, Brookings Institute: State ofMetropolitan America No. 21 (Dec. 16,2010), available athttp://tinyurl.com/lqrcqpr................................ 5

Yale Rabin, “Expulsive Zoning: TheInequitable Legacy of Euclid,” inCharles M. Haar & Jerold S. Kayden,Zoning and the American Dream:Promises Still to Keep 101 (1989) ................... 6

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IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are sociologists, social andorganizational psychologists, and legal scholars whostudy the sociological, physiological, and/orpsychological effects of implicit bias. 1 Amici arescholars who have published numerous books andpeer-reviewed articles on topics such as the influenceof implicit bias on perceptions of community disorder,criminality, and blight, individual decision-makingin housing, and physiological and psychologicalresponses to intergroup contact. Amici, listed in theAppendix, file this brief to acquaint the Court withcurrent social science research on implicit bias andits consequences for the necessity of the FHA’sdisparate impact standard.

SUMMARY OF ARGUMENT

Congress enacted the FHA to end housingdiscrimination in the United States and remedy thedamaging effects of residential segregation. Yethousing discrimination and problems fromresidential segregation persist.

Amici present the Court with contemporarysocial science research revealing that much of thisdiscrimination is not intentional or even conscious.This research demonstrates that implicit andunconscious biases taint a wide range of housing-related decisions and show why the disparate impact

1 Counsels of record have consented to the filing of thisbrief. No counsel of record authored this brief in whole or inpart. No person other than amici curiae and their counsel hasmade a monetary contribution to its preparation or submission.

2

standard is particularly crucial to address thesebiases.

Implicit racial bias skews perceptions ofdisorder, criminality, and blight in neighborhoods.These biased perceptions affect decision-making – inmunicipal land use, displacement, redevelopment,and rehabilitation, and in housing sales andrentals – leading to significant harm to minorityresidents and homeseekers.

Implicit biases may help explain the strikingdisparity between the perceptions held by residentsof Mount Holly Gardens (the “Gardens”) and thedevelopment committee and Township officialscharged with evaluating the condition of theGardens (the “municipality”). Residents describe acommunity they “always loved” (J.A. 92)2: “peaceful”(CA3 J.A. 611), “safe and comfortable” (CA3 J.A.627), and with “all the necessities of life” (J.A. 102),yet lacking “active social service support, codeenforcement, and an aggressive program that wouldpurchase existing rental properties and turn theminto home ownership opportunities.” CA3 J.A. 2140.The municipality describes a community that is“blighted,” where “[n]one of the problems that causedthe blight . . . [could] be remedied withoutredesigning and rebuilding the entire area.” Br. forAppellees at 36, Mt. Holly Citizens in Action, Inc. v.Twp. of Mount Holly, 2011 WL 2442671, at *36 (3dCir. June 10, 2011) (No. 11-59). Amici believe thatthis disparity may lie in implicit racial biases that

2 “CA3 J.A.” refers to the Joint Appendix submitted tothe Third Circuit. “Pet. App.” refers to the appendixaccompanying Petitioners’ certiorari petition. “J.A.” refers tothe Joint Appendix submitted to the Court.

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affect perceptions and decision-making and entrenchhousing segregation and inequity. These harmscannot be overlooked under the FHA, yet would beignored without a legal standard grounded in proofof discriminatory impact.

The Court should affirm the Third Circuit’sdecision because the disparate impact standard isessential for courts to conduct the searching inquirynecessary to fully combat housing discriminationand comply with the FHA’s crucial objective ofending housing segregation.

ARGUMENT

I. THE FHA’S DISPARATE IMPACTSTANDARD IS NECESSARY TOCOMBAT DISCRIMINATION

A. Congress Enacted the FHA toEradicate Housing Discrimination

1. Congress and Courts Have LongRecognized the FHA as a Means toRemedy the Harmful Effects ofHousing Discrimination

The FHA serves to broadly remedy residentialisolation and resultant inequity by prohibitingintentional and implicit discrimination, i.e., policiesand practices with an unjustified discriminatoryimpact, in housing. Pub. L. No. 90-284, Title VIII,82 Stat. 81 (1968).

In enacting the FHA, Congress emphasizedthe harmful effects of housing discrimination. 114Cong. Rec. 2529 (1968) (statement of Sen. Tydings)(“Racial discrimination in housing . . . is notconducive to good health, educational advancement,

4

cultural development, or to improvement of generalstandards of living” for isolated minorities); 114Cong. Rec. 3133 (1968) (statement of Sen. Mondale)(recognizing that prohibiting housing discriminationwas a means to remedy “hard-core unemployment”and improve the “deplorable state” of schools insegregated minority communities). Congressunderstood that housing discrimination affected allAmericans and hindered progress toward an idealsociety. See 114 Cong. Rec. 2524 (1968) (statementof Sen. Brooke).

The Court has interpreted the FHA mindful ofCongress’s concern that housing segregation createsinequities that pervade minority communities andaffect many aspects of residents’ lives. SeeGladstone Realtors v. Vill. of Bellwood, 441 U.S. 91,111 (1979) (acknowledging housing discrimination’sadverse effects on schools, property values,professional development, and social integration inisolated communities). The Court has alsoconsidered the harm to White residents fromhousing segregation. In Trafficante v. MetropolitanLife Insurance Co., the Court recognized that Whiteresidents lose “the social benefits of living in anintegrated community,” the “business andprofessional advantages which would have accrued ifthey had lived with members of minority groups,”and can suffer “embarrassment and economicdamage in social, business, and professionalactivities from being ‘stigmatized’ as residents of a‘white ghetto.’” 409 U.S. 205, 208 (1972); see alsoSection C.1, infra (discussing scientific studiesshowing the demonstrable benefits of interracialinteraction). Indeed, the Act’s purpose was and

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continues to be to eliminate the negative effects ofhousing discrimination on all Americans.

2. Housing Segregation Still Persistsin the United States

The reality, however – as the facts in this casedemonstrate – is that the Act’s goal of achieving a“truly integrated and balanced” society remainsunmet. See 114 Cong. Rec. 3422 (1968) (statement ofSen. Mondale). The United States – including themetropolitan area where the Gardens is located –has integrated sluggishly over the past thirty years.See John R. Logan & Brian J. Stults, The Persistenceof Segregation in the Metropolis: New Findings fromthe 2010 Census, US2010 Project (Mar. 24, 2011),available at http://tinyurl.com/ofs4y6m.

Americans of all races continue to experiencehigh rates of racial isolation. While Whites, Blacks,and Hispanics represent 64%, 13%, and 16% of thegeneral population, respectively, the average Whiteresident now lives in a census tract that is 79%White, the average Black resident lives in a tractthat is 46% Black, and the average Hispanic residentlives in a tract that is 45% Hispanic. Michelle W.Anderson & Victoria C. Plaut, “Implicit Bias and theResilience of Spatial Colorlines,” in Justin D.Levinson & Robert J. Smith, Implicit Racial BiasAcross the Law 27 (2012) (citing William H. Frey,Census Data: Blacks and Hispanics Take DifferentSegregation Paths, Brookings Institute: State ofMetropolitan America No. 21 (Dec. 16, 2010),available at http://tinyurl.com/lqrcqpr, and U.S.Census Bureau, 2010 Census Briefs, Overview ofRace and Hispanic Origin: 2010, Table 1 (Mar. 2011),available at http://tinyurl.com/3gdko8e). Blacks are

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more racially isolated than any other minority group,with 75% of Black families nationwide residing inonly 16% of census block groups. See Craig Gurian,Mapping and Analysis of New Data Documents Still-Segregated America, Remapping Debate (Jan. 18,2011), available at http://tinyurl.com/4ac3k5z.

3. Housing Segregation and RacialIsolation Have Devastating Effectson Communities

Current residential segregation and racialisolation have tremendously negative effects ondisadvantaged communities. “Segregation . . .isolates disadvantaged groups from access to publicand private resources, from sources of human andcultural capital, and from the social networks thatgovern access to jobs, business connections, andpolitical influence.” Elizabeth Anderson, TheImperative of Integration 3 (2010). Segregation alsohinders isolated disadvantaged groups’ “ability toaccumulate wealth and gain access to credit.” Id.Not only are these isolated communities less likely toreceive adequate services, but they are also morelikely to be affected by undesirable land uses (e.g.,highways and chemical plants) and “expulsivezoning” that occurs, for example, through eminentdomain. See, e.g., Anderson & Plaut at 27-28; YaleRabin, “Expulsive Zoning: The Inequitable Legacy ofEuclid,” in Charles M. Haar & Jerold S. Kayden,Zoning and the American Dream: Promises Still toKeep 101 (1989); James A. Kushner, Apartheid inAmerica: An Historical and Legal Analysis ofContemporary Racial Segregation in the UnitedStates 37-41 (1980).

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B. Implicit Biases Perpetuate HousingDiscrimination and Segregation

Amici’s research reveals that underlyingimplicit biases play a large role in housing decision-making that perpetuates segregation. Unlike explicitor conscious biases, implicit biases reflect attitudesand beliefs that “commonly function in an unconsciousand unintentional fashion” and are “automaticallyactivated by the mere presence (actual or symbolic) ofthe attitude object.” John F. Dovidio et al., Why Can’tWe Just Get Along, Interpersonal Biases andInterracial Distrust, 8 Cultural Diversity & EthnicMinority Psychol. 88, 94 (2002).

Research shows that we “do not always haveconscious, intentional control over the processes ofsocial perception, impression formation, andjudgment” which subsequently influence ourassumptions and motivate our actions. Anthony G.Greenwald & Linda H. Krieger, Implicit Bias:Scientific Foundations, 94 Calif. L. Rev. 945, 946(2006); see also Melissa Hart, SubjectiveDecisionmaking and Unconscious Discrimination, 56Ala. L. Rev. 741, 746 (2005). Instead, implicitattitudes or implicit stereotypes that we are notconsciously aware of often cause discriminatorybiases. See Greenwald & Krieger at 951. Researchshows that individuals experience these implicitbiases toward a broad range of outgroups, i.e., “withrespect to race, ethnicity, nationality, gender, socialstatus, and other distinctions.” See John T. Jost etal., The Existence of Implicit Bias is BeyondReasonable Doubt: A Refutation of Ideological andMethodological Objections and Executive Summaryof Ten Studies That No Manager Should Ignore, 29Res. in Organizational Behav. 39-69 (2009).

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For these reasons, it is entirely possible forimplicit biases to run incongruently to attitudes andbeliefs we maintain externally:

Implicit biases are . . . especiallyproblematic, because they can producebehavior that diverges from a person’savowed or endorsed beliefs or principles.The very existence of implicit bias posesa challenge to legal theory and practice,because discrimination doctrine ispremised on the assumption that,barring insanity or mentalincompetence, human actors are guidedby their avowed (explicit) beliefs,attitudes, and intentions.

Greenwald & Krieger at 951. Indeed,“[c]ontemporary sociological and psychologicalresearch reveals that discriminatory biases andstereotypes are pervasive, even among well-meaningpeople.” Hart at 743.

Social science research helps shed light on thepervasiveness and harmful effects of implicit biasesin housing, hindering the goals of the FHA andpreventing “truly integrated and balanced livingpatterns” for all Americans.

1. Implicit Biases Affect Perceptionsof Disorder, Criminality, and Blight

Recent social science research shows thatimplicit biases manifest in perceptions of disorder,criminality, and blight. In housing and land useplanning, these psychological perceptions informgovernment and individual actions and ultimatelyharm minority communities.

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a. Individuals perceive disorder inotherwise identicalneighborhoods solely due to thepresence of minority groups.

“Disorder” generally encompasses theobserved or visual negative traits of a neighborhoodor environment, such as graffiti, public intoxication,garbage, and abandoned cars. See Robert J.Sampson & Stephen W. Raudenbusch, SeeingDisorder: Neighborhood Stigma and the SocialConstruction of “Broken Windows”, 67 Soc. Psychol.Q. 319, 319 (2004); Nicole Stelle Garnett, Orderingthe City, Land Use, Policing, and the Restoration ofUrban America 55 (2009). Beyond the actual,systematic observation of visual disorder, however,perceptions of “disorder” affect at least two types ofmunicipal decision-making: property regulation (e.g.,building codes and nuisance laws), aimed atsuppressing physical and social disorder to preventurban decline; and land use (e.g., zoning laws), usedto create orderly spaces that suppress disorder. SeeGarnett, Ordering the City, at 3, 12.

Recent social science research indicates thatimplicit biases taint these perceptions. Thisresearch shows that, even independent of actualvisual signs of disorder, the racial composition of aneighborhood signals to perceivers what level ofdisorder is present in that neighborhood. SeeAnderson & Plaut at 33. For example, researchshows that among both White and Black populations,a neighborhood’s ethnic, racial, and classcomposition influences perceptions of disorderbeyond the actual, systematic observation of disorder.See Sampson & Raudenbusch at 319-20 (comparingsurvey responses with actually observed disorder in

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an effort to determine what factors most influencedperception). Racial composition was, in fact, thesingle biggest factor influencing perceived disorder –“approximately three times larger than that ofobserved disorder/decay, with controls for allpersonal characteristics and neighborhood ecology.”Id. at 332.

This strong association of racial minoritieswith neighborhoods “with crime, disorder, neglect,and poverty” causes individuals’ perceptions ofdisorder to increase as the Black populationincreases. Courtney M. Bonam, Jennifer L.Eberhardt & Hilary B. Bergsieker, Polluting BlackSpace 9, 36 (June 30, 2013) (unpublished manuscript)(on file with authors). This finding helps explainwhy land use decisions regarding “disordersuppression” frequently lead to displacement ofracial minorities. See Anderson & Plaut at 34(citation omitted).

Studies show that for many, simply seeingBlack (as opposed to White) residents in identicalneighborhoods elicits more negative evaluations ofthe neighborhood’s conditions, e.g., property upkeep,housing cost, safety, future property values, andquality of schools. Id. (citing Maria Krysan,Reynolds Farley & Mick P. Couper, In the Eye of theBeholder, 5 Du Bois Rev.: Soc. Sci. Res. on Race 5(2008), and Maria Krysan, Reynolds Farley, Mick P.Couper & Tyrone A. Forman, Does Race Matter inNeighborhood Preferences? Results from a VideoExperiment, 115 Am. J. Soc. 527 (2009)).

Such perceptions are bolstered by a falsesense of legitimacy: “the more subtle nature of therace-associated reasons makes them more insidious

11

because they appear to be ‘rational’ and notsusceptible to the charge of racism.” Maria Krysan,Whites Who Say They’d Flee: Who Are They and WhyWould They Leave?, 39 Demography 675, 694 (2002).It is thus ever more important that courts have somemechanism to combat mistaken perceptions rootedin implicit bias.

b. Individuals associate criminalactivity with neighborhoodsbased on the presence ofminority groups.

Social science studies “consistently find[] thatAmericans hold strong associations between raceand crime, and appear especially fearful about therisk of crime in the presence of black strangers.”Lincoln Quillian & Devah Pager, Estimating Risk:Stereotype Amplification and the Perceived Risk ofCriminal Victimization, 73 Soc. Psychol. Q. 79, 82(2010) (“Estimating Risk”). Indeed, while “race canact as a proxy for a long list of characteristics,qualities, and statuses” in American society, “[t]heassociation with perhaps the most far-reachingeffects is that of race as a proxy for criminality anddeviance[.]” Lu-in Wang, Race as Proxy in Law &Society: Situational Racism and Self-FulfillingStereotypes, 53 DePaul L. Rev. 1013, 1014 (Spring 2004).

These perceptions of individual criminality“have been shown to operate at more aggregatelevels as well.” Estimating Risk at 82. Social sciencefindings “shed light on an important component ofimplicit bias in property-related decision-making:the widespread – often implicit – perception ofpredominantly black neighborhoods as sufferingfrom disorder and crime.” Anderson & Plaut at 34;

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see also Estimating Risk at 82 (“[T]here often existstrong mental associations between neighborhoodracial composition and neighborhood crime.”). Forexample, research reveals that the percentage ofyoung Black men in a neighborhood is positivelyrelated to perceptions of crime, even after accountingfor actual crime rates. See, e.g., Anderson & Plaut at32-33. Indeed, “several studies have found that thepercentage black in a population is positivelyassociated with fear of crime and perceived severityof the neighborhood crime problem.” EstimatingRisk at 82 (citations omitted); see also Bonam et al.at 2, 36 (finding that Black neighborhoods are“highly associated with crime, disorder, neglect, andpoverty” and “are perceived as under-resourced,dirty, and crime-ridden”). Whites systematically andincorrectly associate the percentage of Blackresidents with higher crime rates. See LincolnQuillian & Devah Pager, Black Neighbors, HigherCrime? The Role of Racial Stereotypes in Evaluationsof Neighborhood Crime, 107 Am. J. Soc. 717-67 (Nov.2001).

c. Perceptions of disorder andcriminality inform blightdesignations that motivatemunicipal decision-making.

The concept of “blight” reflects individuals’perceptions of disorder and criminality. See SectionsB.1.a-b, supra; Bonam et al. at 19 (noting that formany, “[t]he mere presence of Black people in aphysical space activates an image of blightedphysical space.”). “Blight” is the process whereby apreviously functioning city, or part of a city, falls intoa state of disorder and decrepitude; the related

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theory is that minor forms of public disorder lead tocrime and a downward spiral of urban decay. See,e.g., James Q. Wilson & George Kelling, The Police &Neighborhood Safety: Broken Windows, Atl. Monthly,Mar. 1982, at 29-38; George Kelling & CatherineColes, Fixing Broken Windows: Restoring Order andReducing Crime in Our Communities (1996). “Avague, amorphous term, blight [i]s a rhetoricaldevice that enable[s] renewal advocates toreorganize property ownership by declaring certainreal estate dangerous to the future of the city.”Wendell E. Pritchett, The “Public Menace” of Blight:Urban Renewal and the Private Uses of EminentDomain, 21 Yale L. & Pol’y Rev. 1, 3 (2003).Although the term was originally intended to refer toplaces, it soon “became associated with people –specifically the African Americans and immigrantswho were most likely to live in dilapidatedneighborhoods as a result of private sectordiscrimination.” Swati Prakash, Racial Dimensionsof Property Value Protection Under the Fair HousingAct, 101 Calif. L. Rev. 1437, 1458 (2013) (citing id. at6).

* * *

Blight determinations motivate criticalmunicipal decision-making. See Pritchett at 6(noting that, in practice, “blight” designations enablethe “relocat[ion of] minority populations andentrench racial segregation.”). In 1954, the Courtinterpreted the “public use” requirement of theTakings Clause to permit municipalities’ use ofeminent domain to redevelop “blighted” areas.Berman v. Parker, 348 U.S. 26, 32-33 (1954)(allowing the demolition of a “blighted” and “ugly”

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neighborhood that was 98 percent Black so that itcould be replaced with a “clean” and “carefullypatrolled” community). Municipalities continue touse “blight” designations to justify redevelopmentprojects that eliminate minority communities andreplace them with highways, public parks, sportsstadiums, hospitals, or higher-end residentialcommunities. See, e.g., Kushner at 37-41 (1980); JonC. Dubin, From Junkyards to Gentrification:Explicating a Right to Protective Zoning in Low-Income Communities of Color, 77 Minn. L. Rev. 739,754 (1993) (“[While d]esigned for the ostensiblybenign purpose of eliminating urban blight,” federalslum clearance programs instead have furtherexacerbated Black land use inequality by “uproot[ing]and dislocat[ing] thousands of black households andthen confin[ing] the displacees to segregated andinferior relocation housing.”) (citation omitted). Inpost-FHA America, perceptions of disorder andcriminality and the designation of minorityneighborhoods as “blighted” – including in MountHolly – thus risk perpetuating segregation andinequity in housing and land use.

Moreover, implicit biases thrive wheredecision-making leaves room for subjectivity. “[T]hepotential for unconscious stereotypes and biases tointrude . . . is greatest when subjective judgmentsare involved.” Hart at 745 (citation omitted). Indeed,at least one federal court has noted that officials’“subjective decision-making processes” are“particularly susceptible to being influenced not byovert bigotry and hatred, but rather by unexaminedassumptions about others that the decisionmakermay not even be aware of – hence the difficulty offerreting out discrimination as a motivating factor.”

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Thomas v. Troy City Bd. of Educ., 302 F. Supp. 2d1303, 1309 (M.D. Ala. 2004), cited in Hart at 742-43.

Such subjectivity is problematic when, forexample, municipalities disproportionately targetpoor and predominantly minority communities forremoval and redevelopment through eminentdomain without properly considering alternatives todisplacement. In a 2009 study analyzing 184 areastargeted for private development through eminentdomain, researchers concluded that “neighborhoodsfacing the prospect of eminent domain were poorerand had a greater concentration of minorities thanthe rest of the city.” See Br. for Amicus CuriaeInstitute for Justice at 10 (citing Dick M. Carpenter& John K. Ross, Testing O’Connor and Thomas: Doesthe Use of Eminent Domain Target Poor andMinority Communities?, 46 Urb. Stud. 2447, 2453(2009)).

Land use decisions aimed at “disordersuppression” or combating blight disproportionatelyaffect racial minorities. See, e.g., Anderson & Plautat 34; Dorothy E. Roberts, Foreword: Race,Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology775, 813, 819 (1999) (asserting that “categories oforder and disorder have a pre-existing meaning thatassociates Blacks with disorder and lawlessness”and warning of “immeasurable” damage inflicted onBlacks by disorder suppression strategies “thatincorporate racialized categories of orderly anddisorderly people.”); Nicole S. Garnett, RelocatingDisorder, 91 Va. L. Rev. 1075, 1080, 1122 (2005)(“Unfortunately, disorder-relocation policies . . .single out poor, minority communities for

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enforcement . . . rais[ing] serious concerns abouteconomic and racial justice[.]”).

Further, disorder-relocation and eminentdomain policies have had “profoundly disappointing”results; after urban planners destroy “disorderly”communities “and scatter[] residents to the winds,many residents [have] difficulty even locating a newplace to live.” Garnett, Ordering the City, at 46(noting that for Black families, in particular, “thepost-displacement situation [is often] ‘close todesperate’”). This is precisely the case in MountHolly, where many residents planned their livesaround their homes in the Gardens. For one long-term resident, “[t]he Gardens is what we have calledhome for almost 20 years,” but “after working hardall of their lives,” residents now worry about whereto live after retirement. CA3 J.A. 560 (Decl. of AnaArocho). Another long-term resident and owner oftwo homes in the Gardens was hoping to “be able topass on the houses to [his] children.” J.A. 106 (Decl.of Santos Cruz). Planning experts confirmed that90% of existing residents would be unable to affordthe newly-constructed homes proposed in theTownship’s redevelopment plan and would likewisebe unable to afford market-rate units anywhere elsein the Township due to the utter scarcity ofaffordable housing in the area. Pet. App. 9a.

Given the serious consequences of exercisingeminent domain pursuant to “blight” designations,and social science research that demonstrates theeffect of implicit biases on these decisions,particularly when subjectivity is involved, courtsmust have some mechanism to assess the role ofimplicit biases. As discussed in Section C.2, infra,

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the disparate impact standard provides thismechanism.

2. Implicit Biases Affect Perceptionsof Minorities and the Spaces TheyInhabit

Implicit biases affect decision-making due tosubconscious perceptions of minorities as lessdesirable residents. These biases influence negative“race-space associations” – perceptions of a spacebased on the race of those who occupy it – and resultin detrimental treatment in housing transactionsbased on individuals’ racial perceptions andstereotyping. Anderson & Plaut at 29, 34-36.

a. Negative race-space associationsand stereotyping perpetuatesegregation, adversely affectland value, and lead todisparities in harmful land use.

Negative race-space associations affect howpeople evaluate a “space” – e.g., conditions in aneighborhood – based on the race of those whooccupy it. See Anderson & Plaut at 34. Severalstudies suggest that neighborhood stereotypes ofcrime, municipal services, undesirable conditions,and other negative race-space associations affectimportant decisions about land values, neighborhooddesirability, land use, and amenities. Id.

Valuations of Land. Research stronglysuggests the role of implicit bias in explaining theconnection between property values and racialstereotyping of space. See id. In one study,participants evaluated a house for sale, withresearchers varying the race of the family that

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“owned” the home by inserting a photograph ofeither a Black or White family. Bonam et al. at 15-16. The photos did not differ in dimensions ofperceived social class, racial prototypicality,friendliness, or attractiveness of the families. Id.Despite evaluating otherwise identical houses, studyparticipants rated the neighborhood as less desirable,estimated a lower value for the house, and liked thehome less when it was owned by a Black familyrather than a White family. Id. at 18.

In another study, participants viewed a videoof either a middle or working class neighborhoodwith actors of different races playing its inhabitants.Maria Krysan, Kyle Crowder & Michael Bader,“Pathways to Residential Segregation,” in ChoosingHomes Choosing Schools: Residential Segregationand the Search for a Good School 12 (AnnetteLareau & Kimberly Goyette, eds.) (“Pathways toResidential Segregation”). When participants wereasked to give impressions and predictions aboutneighborhood conditions such as property upkeep,housing cost, safety, future property values, andquality of schools, results showed that for Whiteparticipants, simply seeing Black (as opposed toWhite) residents in a neighborhood elicited morenegative evaluations of neighborhood conditions –even though in all respects other than race theneighborhoods appearing in the video were identical.See Krysan et al., In the Eye of the Beholder, at 5-26;see also Krysan et al., Does Race Matter inNeighborhood Preferences, at 527-59.

Neighborhood Desirability. Negative race-space associations influence individuals’ perceptionsof neighborhood desirability, including Whites’ viewson where to live. Researchers have found that

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communities with relatively high concentrations ofBlacks tend to be considered the least desirableamong Whites, even in communities with relativeaffluence. Maria Krysan, Community Undesirabilityin Black and White: Examining Racial ResidentialPreferences Through Community Perceptions, 49 Soc.Probs. 521, 534 (2002). With respect to lower-income,mixed race and Black neighborhoods, Whitesexplained their perceptions of undesirability asrelated not to race, but rather “congestion, traffic,people, noise, and crime.” Id. at 531; see alsoPathways to Residential Segregation at 11 (findingthat in addition to their own biases, thediscriminatory behavior of landlords and real estateagents is further influenced by the real or perceivedbiases of existing community members who prefernot to share residential space with minorityneighbors).

Land Use. Implicit biases not only affectresidential valuations and desirability, but can alsoguide municipal decisions that negatively impact acommunity. A study asking White participants todecide the placement of a chemical plant found thatthe racial composition of a neighborhood was thedecisive factor in deciding the location of the plant.Bonam et al. at 30-31. Study participants were lesslikely to oppose the construction of a chemical plantin a residential area when the neighborhood waspredominantly Black, even when controlling forperceptions of house values, environmental concerns,and participants’ explicit feelings toward Blacks. Id.at 34. It is unlikely that the average Americanwould intentionally choose to make someone sufferfrom the adverse effects of a chemical plant solelybased on race. However, implicit biases can and do

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generate behavior that departs from a person’s“avowed or endorsed beliefs or principles.”Greenwald & Krieger at 951.

These findings unfortunately track reality inthe United States. A report based on national datacollected over a twenty-year period shows anoverconcentration of industrial and toxic wastefacilities in communities of color. Robert D. Bullardet al., Toxic Wastes and Race at Twenty: 1987-2007xii (Mar. 2007), available at http://tinyurl.com/ohs83c8. The disparity is so high that “[r]acecontinues to be an independent predictor of wherehazardous wastes are located, and it is a strongerpredictor than income, education and othersocioeconomic indicators.” Id. Unsurprisingly,dramatic disparities in exposure to environmentalhazards along racial lines have demonstrable healthconsequences for people of color. Id.; see alsoPathways to Residential Segregation at 8-9(explaining that “[b]y concentrating blacks and someother minorities in the worst-quality neighborhoods,segregation also contributes to dramatic racialdisparities in exposure to environmental hazards,access to healthy food choices, and exposure to crimeand other sources of environmental stress, therebyhelping to produce profound and persistent racialdisparities in health.”) (internal citations omitted).

Negative race-space associations affectminority communities in long-lasting ways. Whileperceptions of home value can affect minoritiesfinancially, deciding where to place chemical plants,toxic waste sites, and other environmental hazardscan adversely affect minorities’ quality of life andhealth. See, e.g., Bonam et al. at 35; see alsoAnderson & Plaut at 35-36; Bullard et al. at xii;

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Pathways to Residential Segregation at 8-9. All ofthese factors contribute to racial isolation andinequity, the precise harms that Congress sought toremedy through the FHA. This type ofdiscrimination is not blatant or open; rather, it isrooted in implicit bias.

b. Raced preferences in housingtransactions have devastatingeffects on minority homeseekersand show that minorities areperceived as undesirableresidents.

Contrary to Petitioners’ claim that all housingtransactions are somehow entirely neutral orobjective, research suggests that implicit biases maybe responsible for racial disparities in access to andlocation and quality of housing. Recent studies showthat modern discriminatory behavior often occursthrough subtle raced preferences in housingtransactions, where minorities seeking housingreceive unequal assistance from landlords, realtors,and institutions. See Margery A. Turner & StephenL. Ross, “How Racial Discrimination Affects theSearch for Housing,” in The Geography ofOpportunity: Race and Housing Choice inMetropolitan America 81, 84-85 (Xavier de SouzaBriggs, ed., 2005). Even when housing providers andlending institutions are not consciously makingbiased decisions, their actions and behavior are oftenprimed by stereotypes and subconscious orunconscious perceptions of minority homeseekersthroughout the housing process.

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i. Implicit biases limitminority homeseekers’ability to access the housingmarket.

Implicit biases surface during minorities’preliminary efforts to obtain housing. Researchshows that housing providers disfavor minorityhomeseekers when receiving even simple writteninquiries about available units due to “subconsciousreactions to the names of applicants.” Adrian G.Carpusor & William E. Loges, Rental Discriminationand Ethnicity in Names, 36 J. Applied Soc. &Psychol. 934, 938 (2006). 3 The “[c]ultural andsemantic attributes associated with names have thepotential to activate stereotypes” in housingproviders’ subconscious minds. Id. at 935. Studiesshow that individuals may associate race and othersocial and demographic characteristics – such asgender, age, and socioeconomic status – based solelyon abstract qualities such as an individual’s name.See id. at 936. By associating the name of ahomeseeker with his or her perceived race, thesehousing providers may act on subconsciousstereotypes even before they seek any substantiveinformation about the potential applicant. See id. at937, 949.

3 Other studies demonstrate similar results based onvoices or dialects during phone inquiries. See, e.g., Douglas S.Massey & Garvey Lundy, Use of Black English and RacialDiscrimination in Urban Housing Markets: New Methods andFindings, 36 Urb. Aff. Review 452, 454 (2001); Thomas Purnell,William Idsardi & John Baugh, Perceptual and PhoneticExperiments on American English Dialect Identification, 18 J.Language & Soc. Psychol. 10, 14-15 (1999).

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Studies show that housing providersdemonstrate preferences for homeseekers with“White-sounding” names. Researchers have foundlarge disparities in the rate of email responses thathousing providers send to otherwise identicalinquiries that vary only in the name attached tothem. See id. at 943-46; Andrew Hanson, ZackaryHawley & Aryn Taylor, Subtle Discrimination in theRental Housing Market: Evidence from E-mailCorrespondence with Landlords, 20 J. Housing Econ.276, 279-82 (2011). These housing providerssignificantly favor inquiries from White-soundingnames (e.g., “Patrick McDougall” or “Brett Murphy”)over identical inquiries from non-White soundingnames (e.g., “Tyrell Jackson” or “TremayneWilliams”). See Hanson et al. at 279-83; Carpusor &Loges at 943-47 (examining 1,115 emails sent tolandlords with advertised apartment vacancies andfinding that compared to a White-sounding name,inquiries sent from an Arab-sounding name (“SaidAl-Rahman”) were three times more likely to bediscouraged from visiting an apartment for rent,while inquiries from a Black-sounding name (“TyrellJackson”) were four times more likely to bediscouraged). Housing providers also respond morequickly, write longer emails, and use more positiveand descriptive language with homeseekers withWhite-sounding names. Hanson et al. at 279-82.Further, they are more likely to invite follow-upcorrespondence, use a formal greeting and politelanguage, provide contact information, and offershowings when responding to “White” homeseekers’inquiries. Id.

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ii. Implicit biases mayinfluence housing agents’decisions to provide lessinformation and offer lessassistance to non-Whitehomeseekers.

After minority homeseekers access thehousing market (for example, by meeting with a realestate agent or visiting an available unit), implicitbiases may again resurface though the informationand assistance they receive. Housing agents oftenprovide less information and make fewer salesefforts with minorities’ inquiries. See, e.g., SeokJoon Choi, Jan Ondrich & John Yinger, Do RentalAgents Discriminate Against Minority Customers?Evidence From The 2000 Housing DiscriminationStudy, 14 J. Housing Econ. 1, 22-24 (2005); JanOndrich, Alex Stricker & John Yinger, Do LandlordsDiscriminate? The Incidence and Causes of RacialDiscrimination in Rental Housing Markets, 8 J.Housing Econ. 185, 193-99 (1999).

Housing agents signal less positive commentsabout available units (e.g., “spacious” or “gets goodlight”) and use more negative or discouraginglanguage (e.g., acknowledging defects or commentingon the high price). See John Yinger, Evidence onDiscrimination in Consumer Markets, 12 J. Econ.Persp. 23, 32 (1998); Ondrich et al. at 193-97;Hanson et al. at 279-81. White homeseekers alsoexperience more overall helpfulness and facilitationwith sales than do minorities. Yinger, Evidence onDiscrimination in Consumer Markets, at 23-40;Ondrich et al. at 187, 193-97; Choi et al. at 22-24.Studies have also found statistical significance in thedecreased likelihood that agents will perform certain

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tasks when interacting with Black and Hispanicclients, such as mentioning financial incentives,asking about personal needs, offering financialassistance, extending invitations to view advertisedunits, and making follow-up calls. See, e.g., Ondrichet al. at 193-203; Yinger, Evidence on Discriminationin Consumer Markets, at 30-32; Hanson et al. at 279-81.

iii.Implicit biases influencemortgage providers’ lendingpatterns with minorities.

Implicit biases and raced preferences inhousing transactions are especially detrimental tominority homeseekers’ ability to obtain mortgages,which further limits the timing, location, and qualityof available housing options. When purchasing ahome, minority homeseekers often obtain financialarrangements that are inferior to equally qualifiedWhites. See William C. Apgar & Allegra Calder,“The Dual Mortgage Market: The Persistence ofDiscrimination in Mortgage Lending,” in TheGeography of Opportunity: Race and Housing Choicein Metropolitan America 101-23 (Xavier de SouzaBriggs, ed., 2005). In fact, patterns of subprimelending are seen both among rich and poorminorities. Id. at 102-03. Thus, by controlling forclass, studies disprove the arguments presented byamici in support of Petitioners by showing thatracial bias does in fact affect lending and relatedfinancial practices. Compare Br. for Amici CuriaeAm. Civ. Rights Union, at 11, 12, with Apgar &Calder at 102-03 (finding that high-income Blackborrowers had 12% fewer prime loans than equallyqualified Whites; low-income Black families had amuch higher share of subprime purchase loans than

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the overall comparable population; and 42% ofrefinance loans to low-income Blacks living in low-income Black neighborhoods were subprime,compared to just 27% among equally low-incomeborrowers from non-Black neighborhoods).

* * *

These findings are critical to understand theshifting forms of persistent discrimination inhousing. Although blatant discriminatory practicesmay be less common, research shows that well-qualified minorities face longer and more costlysearches that effectively restrict their housingoptions. HUD Executive Summary 2013 at 1; JohnYinger, Closed Doors, Opportunities Lost: TheContinuing Cost of Housing Discrimination ch. 6(1995) (estimating that the 3-year cost of housingdiscrimination in the sales market is about $7.8billion for Blacks and $4.4 billion for Latinos). Moreimportantly, the above-mentioned studies confirmthat minorities continue to be viewed and treated asless desirable residents and neighbors. See, e.g.,Pathways to Residential Segregation at 11 (findingthat landlords and real estate agents are ofteninfluenced by the biases of residents and othercustomers who prefer not to share residential spacewith minority neighbors); see also Ondrich et al. at185, 197-203. These findings indicate that implicitbiases against minorities exist and lead todisparities that simply cannot be attributed topurely economic factors.

The detrimental nature of these implicitbiases also illustrates the importance of thedisparate impact standard. The standard isnecessary because homeseekers’ inquiries may elicit

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“subconscious reactions” and “activate stereotypes”beginning at the most preliminary stages of thehomeseeking process. Carpusor & Loges at 935, 949.Research illustrates that racial discrimination is notlimited to overt, direct-contact interactions, butrather involves implicit biases that influencedecisions that otherwise appear to be neutral. Thesebiases may help explain why housing providers,agents, and lenders disfavor non-White homeseekers.Given the prevalence of implicit biases and theperceptions of residential undesirability that theyelicit, which likely also infect municipality decision-making (see Section B.1.c, supra), the disparateimpact standard is crucial to combat all forms ofdiscrimination.

C. Social Science Research Confirms thatthe Disparate Impact Standard IsNecessary to Address Implicit Biasesand Attendant Harms

As amici have shown, social science researchexposes implicit bias as a very real and pervasiveform of discrimination that perpetuatesmultigenerational harm to individuals and society.

1. Segregation Reinforces ImplicitBiases that Drive HousingDiscrimination, and IntegratedCommunities Combat These Biases

Researchers have specifically identified theexistence and pervasiveness of implicit bias throughexperiments that measure individuals’ physiologicaldiscomfort with and negative psychologicalresponses to intergroup interaction. These studiesshow, for example, that physiological discomfort canfrequently be linked to lack of exposure to

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meaningful diversity. This lack of exposure mayresult from housing segregation.

Research shows that initial interactions with“outgroup” members (i.e., individuals from distinctracial, socio-economic, or gender groups) canstimulate anxiety and distress. See Jim Blascovich,Wendy B. Mendes, Sarah B. Hunter, Brian Lickel &Neneh Kowai-Bell, Perceiver Threat in SocialInteractions With Stigmatized Others, 80 J.Personality & Soc. Psychol. 253, 254 (2001). Thisinitial anxiety manifests physiologically incardiovascular reactivity, increased production ofcortisol (commonly called the “stress hormone”), andchanges in the regularity of heart rate per breathingcycle. See id. at 254; Elizabeth Page-Gould, WendyB. Mendes & Brenda Major, Intergroup ContactFacilitates Physiological Recovery FollowingStressful Intergroup Interactions, 46 J. ExperimentalSoc. Psychol. 854, 855 (2010).

Researchers have also observed physiologicaldiscomfort in brain activity. Studies show thatspecific areas of the brain called amygdalae – a pairof small subcortical nodes – activate when we feelfear, threat, anxiety and distrust. See Sergi G.Costafreda et al., Predictors of Amygdala ActivationDuring the Processing of Emotional Stimuli: A Meta-Analysis of 385 PET and fMRI Studies, 58 Brain Res.Rev. 57, 60, 62 (2008); Frank Van Overwalle, SocialCognition and the Brain: A Meta-Analysis, 30 Hum.Brain Mapping 829, 849 (2009). A pioneering fMRIstudy showed a measurable increase in theactivation of the amygdala when White participantsviewed Black male faces versus White male faces.See Elizabeth A. Phelps et al., Performance onIndirect Measures of Race Evaluation Predicts

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Amygdala Activation, 12 J. Cognitive Neuroscience729, 729-36 (2000). The measurable physiologicalresponses associated with distress, fear, threat,anxiety and distrust may help explain why socialscience studies show that individuals illogicallyperceive disorder and criminality simply based onthe presence of minority groups.

While lack of exposure to different racescauses physiological stress, social science researchdemonstrates that increasing diversity has well-documented physiological benefits that can serve tomitigate implicit biases over time. Studies showthat making local environments more diversedecreases implicit bias. See Nilanjana Dasgupta &Luis M. Rivera, When Social Context Matters: TheInfluence of Long-Term Contact and Short-TermExposure to Admired Outgroup Members on ImplicitAttitudes and Behavioral Intentions, 26 SocialCognition 112, 120-21 (2008). Exposure to diversityhelps regulate cardiovascular threat response,measured by vascular contractility and loweredcirculatory resistance to blood flow. See Blascovichet al. at 263. Previous interracial contact predictsbetter recovery from an autonomic nervous system(ANS) stress response, enabling faster return to aregular heart rate, and quicker neuroendocrinerecovery (measured by changes in cortisol levels),rapidly ceasing the production of excess cortisol.Page-Gould, Intergroup Contact, at 854-56. Dataalso suggests that interracial contact significantlydecreases the release of cortisol (the “stresshormone”), measured in saliva, over the course ofmultiple interracial interactions. Elizabeth Page-Gould, Rodolfo Mendoza-Denton & Linda R. Tropp,With a Little Help From My Cross-Group Friend:

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Reducing Anxiety in Intergroup Contexts ThroughCross-Group Friendship, 95 J. Personality & Soc.Psychol. 1080, 1085, 1089 (2008).

Social science research also showspsychological benefits: interracial interactionsreduce implicit and explicit prejudices in thedevelopment of interpersonal relationships. Havingpast intergroup contact significantly lowers a rangeof prejudice measures (including cognitive, socialdistance, and affective indicators). Thomas F.Pettigrew & Linda R. Tropp, A Meta-Analytic Test ofIntergroup Contact Theory, 90 J. Personality & Soc.Psych. 751-83 (2006) (conducting a meta-analysis ofover 200 studies). Further, repeated interracialinteractions produced more positive emotionalexperiences comparable to those of participantsengaging in same-race interactions. See Negin R.Toosi, Nalini Ambady, Laura G. Babbitt & Samuel R.Sommers, Dyadic Interracial Interactions: A Meta-Analysis, 138 Psychol. Bull. 1, 16, 18 (2012).

These analyses indicate that interracialinteractions help reduce bias, anxiety, and othernegative emotional responses. By preserving thedisparate impact standard as a way to increase thepresence of underrepresented groups in communitiesotherwise effectively segregated or isolated on thebasis of implicit biases, courts may allow for the kindof meaningful intergroup contact that has beenshown to mitigate implicit biases and theirphysiological and psychological effects.

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2. Courts Need the Disparate ImpactStandard to Address All Forms ofDiscrimination, Including ImplicitBias

Social science research demonstrates that inorder to truly address implicit bias – and thus allforms of discrimination in housing, as Congressintended – courts must be able to apply disparateimpact analysis. The FHA makes it unlawful to“make unavailable or deny” (42 U.S.C. § 3604(a))housing to a protected class “by, among other things,action that limits the availability of affordablehousing.” Pet. App. 14a (citations omitted). Itsparamount aim is to combat conduct thatperpetuates segregation.

As amici have shown above, such conductneed not be intentional or consciously undertaken.This is precisely why the disparate impact standardis critical. Disparate impact claims “permit federallaw to reach ‘[c]onduct that has the necessary andforeseeable consequence of perpetuating segregation[,which] can be as deleterious as purposefullydiscriminatory conduct in frustrating the nationalcommitment to replace the ghettos by trulyintegrated and balanced living patterns.’” Id. (citingMetro. Hous. Dev. Corp. v. Vill. of Arlington Heights,558 F.2d 1283, 1289-90 (7th Cir. 1977)). Accordingly,“[a]ll of the courts of appeals that have consideredthe matter, including [the Third Circuit], haveconcluded that plaintiffs can show the FHA has beenviolated through policies that have a disparateimpact on a minority group.” Pet. App. 20a(citations omitted).

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Courts must conduct a “searching inquiry” ofwhether unlawful discrimination has influenced thedecisions that lead to disparate treatment. Pet. App.22a (citations omitted). According to this Court,such an inquiry is necessary because many biasesare not identifiable as intentional discrimination.See Furnco Constr. Corp. v. Waters, 438 U.S. 567,577 (1978) (“[W]e know from our experience that,more often than not, people do not act in a totallyarbitrary manner, without any underlyingreasons[.]”). By focusing a legal inquiry on amunicipality’s intent at the moment aredevelopment decision is made, “the law fails torecognize that discrimination ‘can intrude muchearlier, as cognitive process-based errors inperception and judgment subtly distort theostensibly objective data set upon which a decision isultimately based.’” See, e.g., Hart at 746 (quotingLinda H. Krieger, The Content of Our Categories: ACognitive Bias Approach to Discrimination andEqual Employment Opportunity, 47 Stan. L. Rev.1161, 1211 (1995)) (discussing employer intent).

Further, in sensitive situations – for example,those involving race or other protected categories –measuring implicit bias is even more valuable thanmeasuring explicit bias. See Greenwald & Krieger at954-55 (“Implicit measures of bias have relativelygreater predictive validity than explicit measures insituations that are socially sensitive, like racialinteractions, where impression-managementprocesses might inhibit people from expressingnegative attitudes or unattractive stereotypes.”).Indeed, recent social science research confirms thatimplicit biases appear to be supplanting explicitracism. See Toosi et al. at 5 (“With the emergence of

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more inclusive social norms, explicit expressions ofracial attitudes have gradually become less biased;however, people often harbor more raciallyprejudiced views than they are willing to report.”)(citations omitted); id. at 19 (noting that self-reported “negative affect” in interracial interactionsis higher in realistic field studies than lab studies,suggesting that “participants are less likely to try topresent themselves in a more positive light when noexperimenter is present”) (citation omitted); Hart at747 (“[R]esearchers in the past decade have come torecognize [] a pervasive ‘conflict between the denialof personal prejudice and the underlying unconsciousnegative feelings and beliefs.’”) (citing Dovidio et al.at 90). As a result, discrimination today “is mostlikely to occur in contexts where it can be justified assomething other than discrimination.” Hart at 747.Recent sociological and psychological researchconfirms that implicit biases “are pervasive, evenamong well-meaning people.” Id. at 743.

The facts of the instant case likewise endorsea “searching inquiry” into the role of implicit bias inthe Township’s decision to redevelop the Gardens.Here, minorities were disproportionately affected bythe plan. According to the residents’ statisticalexpert, “African-Americans would be 8 times morelikely to be affected by the project than Whites, andHispanics would be 11 times more likely to beaffected.” Pet. App. 16a, 19a (“[T]he Residents canestablish a prima facie case of disparate impact byshowing that minorities are disproportionatelyburdened by the redevelopment plan or that theredevelopment plan ‘[falls] more harshly’ onminorities.”) (quoting Doe v. City of Butler, 892 F.2d315, 323 (3d Cir. 1989)).

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Further, the Township appears to have failedto adequately consider rehabilitation as an option,which may thus reflect unlawful implicitassumptions about residential (un)desirability. Theresidents’ expert “noted that the Township had notperformed a comparative cost analysis showing thattotal demolition, relocation, and new constructionwas less feasible than an alternative focused onrehabilitation” (Pet. App. 26a) and “had failed tomake an active effort to locate a developer withexperience in neighborhood rehabilitation.” Pet. App.27a. Another planning expert confirmed in 2005that the redevelopment plan at that time – whichincluded “optional rehabilitation” of some originalhomes – “was deficient because it only allowedrehabilitation as an option, without requiring oreven encouraging it.” Pet. App. 9a. Importantly, theresidents’ planning expert opined that “the ‘blightedand unsafe’ conditions could be remedied in a far lessheavy-handed manner that would not entail thewholesale destruction and rebuilding of theneighborhood.” Pet. App. 26a. Yet the current plandoes not include any rehabilitation whatsoever. Pet.App. 9a. Even if by these actions the Township didnot intend to discriminate, courts have recognizedthat “a thoughtless housing practice can be as unfairto minority rights as a willful scheme.” Pet. App.23a (quoting Smith v. Anchor Bldg. Corp., 536 F.2d231, 233 (8th Cir. 1976)). Indeed, as detailed above,implicit biases are activated automatically andwithout conscious effort or awareness and can have asubstantial influence on the behavior of decision-makers in municipalities. See Hart at 743 (noting thatimplicit biases are held even by individuals whose“consciously held beliefs are strongly egalitarian.”).

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The disparate impact standard gives courts atool to ferret out potential discrimination where aprotected group is “disproportionately burdened” bymunicipal action. It also allows courts to conduct aproper analysis of legitimate bases for displacementwhere municipal decision-makers might have beenimproperly influenced by implicit bias. See Berman,348 U.S. at 32-34; see also Greenwald & Krieger at966-67 (“[W]hen racially neutral causes and explicitbias can be rejected as causal explanations forracially disparate outcomes, implicit race bias mustbe regarded as a probable, even if not definitivelyestablished, cause.”). Here, the disparate impactstandard is crucial to begin the discussion ofwhether implicit bias tainted the Township’sdecision based on the appearance of rather than aproper evaluation of blight, or the projected increasein property value coming from replacing the mostlyminority community with homes at price points theycannot afford.

Without the disparate impact standard toreveal potential implicit biases, reviewing courtswould allow these biases to continue to influencedecision-making in a way that could also increaseracial animus. By favoring displacement overcommunity improvement, the Township’s decisionhas created the appearance of biased decision-making. If implicit biases have played a role in thisdecision and hindered the Township’s formulation ofalternatives to displacement, a court operatingwithout the disparate impact standard wouldnonetheless be forced to conspicuously refuse to evenattempt to assess the Township’s decision, therebyallowing a protected group to be harmed on the basisof discrimination. This scenario not only publicly

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legitimizes discrimination, but it also perpetuatessegregation through disproportionate displacementof minority communities – in direct contravention tothe FHA.

By providing a way to account for implicitbiases resulting in disproportionate impact ofmunicipalities’ decisions on minority communities,the disparate impact standard works to combat allforms of discrimination and provides a means toeliminate those implicit biases in future generations.Given the goal of the FHA to eradicate the harmscaused by segregation, the role implicit biases playin perpetuating this segregation, and the clearbenefits of integrated and diverse communities incombating implicit bias, the Court must interpretthe FHA to include the disparate impact standard.

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CONCLUSION

Amici curiae urge the Court to affirm thejudgment of the court of appeals.

Dated: October 28, 2013 Respectfully submitted,

EVA PATERSONCounsel of Record

ALLISON S. ELGARTEQUAL JUSTICE SOCIETY1999 Harrison Street,

Suite 800Oakland, CA 94612(415) 288-8700epaterson@

equaljusticesociety.org

DAVID J. BERGERSAVITH S. IYENGARJASON B. GUMERJASMINE M. OWENSRO KHANNAWILSON SONSINI

GOODRICH & ROSATI, PCOne Market Street,

Suite 3300San Francisco, CA 94105(415) 947-2000siyengar@wsgr.com

Counsel for Amici Curiae

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APPENDIX: LIST OF AMICI CURIAE4

Michelle Wilde Anderson is an AssistantProfessor of Law at the University of California,Berkeley. She is a scholar of land use, localgovernment law, and local government finance. Hercurrent research focuses on the governance of high-poverty neighborhoods by township and countygovernments, as well as restructuring options likedissolution and bankruptcy for strugglingmunicipalities. She serves on the ExecutiveCommittee at the Thelton E. Henderson Center forSocial Justice.

Dr. Evan Apfelbaum is a social psychologist andAssistant Professor of Organization Studies at MITSloan School of Management. Dr. Apfelbaum hasextensively researched the implications of race-blindversus race-conscious practices in contexts rangingfrom cross-race interactions and organizationalteams to the educational system and the law.

Dr. Laura Babbitt is a social psychologist and post-doctoral scholar at Tufts University. Her researchhas examined the psychological factors thatinfluence interracial interaction outcomes, makinguse of both experimental and meta-analytictechniques. Her current research investigatesintergroup dynamics in apparel factories, inconnection with the International LaborOrganization.

4 Affiliations are listed for identifications purposes only.Amici submit this brief in their individual capacities alone, andnot on behalf of any institution or organization.

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Dr. Michael Bader is an Assistant Professor ofSociology at American University. He researchescities and ways in which people interact within thebuilt environment. His scholarship focuses on thecauses and consequences of racial and economicsegregation, neighborhood inequality, and healthand nutrition disparities.

Dr. Hilary B. Bergsieker is an Assistant Professorof Psychology at the University of Waterloo. Herresearch examines stereotyping, prejudice, andinterpersonal dynamics of interracial interactions,with a focus on distrust and asymmetric experiencesbetween racial groups.

Dr. Jim Blascovich is a Professor of Psychology atthe University of California, Santa Barbara and theCo-Director of the Research Center for VirtualEnvironments and Behavior. His two main areas ofresearch are social motivation and social influencewithin technologically mediated environments. Heis a past President of both the Society for Personalityand Social Psychology, Inc. and the Society ofExperimental Social Psychology.

Dr. Courtney Bonam is an Assistant Professor ofPsychology at the University of Illinois, Chicago anda research affiliate of the Institute for SustainableEconomic, Educational and Environmental Design.Her research focuses on implicit racialstereotyping; environmental justice; racialdisparities in access to high quality physical space;as well as the experiences and perceptions ofmultiracial people.

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Dr. Camille Zubrinsky Charles is the Edmund J.and Louise W. Kahn Term Professor in SocialSciences at the University of Pennsylvania. She isthe author of Won't You Be My Neighbor? Race,Class, and Residence in Los Angeles. She currentlyserves as the Director of the Center for AfricanaStudies at the University of Pennsylvania and on theeditorial boards of the American Sociological Reviewand Du Bois Review: Social Science Research onRace. Her research interests are in the areas ofurban inequality, racial attitudes and intergrouprelations, racial residential segregation, minoritiesin higher education, and racial identity.

Dr. Kyle Crowder is a Professor of Sociology at theUniversity of Washington. His research focuses onthe dynamics and consequences of residentialstratification. A central focus of his most recentwork has been on the micro-level residentialprocesses shaping persistent patterns of residentialsegregation and environmental inequality.

Dr. Nilanjana Dasgupta is a Professor ofPsychology at the University of Massachusetts atAmherst. Dr. Dasgupta is an experimental socialpsychologist whose research focuses on biases inimplicit attitudes and beliefs; how implicit biasaffects judgments and behavior toward others andthe self; and social contexts that change implicit bias.She applies her work to education, organizations,and legal theories of discrimination.

Dr. Jennifer L. Eberhardt is an AssociateProfessor of Psychology at Stanford University andthe Co-Director of SPARQ – a center aimed tohighlight Social Psychological Answers to Real-World Questions. Her research focuses on race and

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inequality. Her most recent work examines theways in which race is associated with crime andphysical space.

Dr. Reynolds Farley is a Research ProfessorEmeritus at the Population Studies Center and aProfessor Emeritus of Sociology at the University ofMichigan. His research focuses on population trendsin the United States, with an emphasis on racialdifferences, ethnicity, and urban structure. Hiscurrent work includes an investigation of theresidential consequences of revitalization in theNortheastern and the East North Central States.

Dr. Maria Krysan is a Professor in the Departmentof Sociology and the Institute of Government andPublic Affairs at the University of Illinois, Chicago.Her research focuses on racial residentialsegregation and racial attitudes.

Dr. Douglas S. Massey is the Henry G. BryantProfessor of Sociology and Public Affairs atPrinceton University. He is the co-author ofAmerican Apartheid: Segregation and the Making ofthe Underclass, which won the DistinguishedScholarly Publication Award from the AmericanSociological Association. He currently serves on theCouncil of the National Academy of Sciences and isthe President of the American Academy of Politicaland Social Science.

Dr. Rodolfo Mendoza-Denton is an AssociateProfessor of Psychology at the University ofCalifornia, Berkeley. His research focuses onintergroup relations and the negative impact ofstigmatization and lack of inclusion on minoritystudents’ educational outcomes.

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Dr. Elizabeth Page-Gould is an AssistantProfessor of Psychology at the University of Toronto.Dr. Page-Gould’s research has primarily taken anexperimental and longitudinal approach tounderstand the role that cross-ethnic friendshipplays in psychological and physiological thriving indiverse contexts.

Dr. Thomas Pettigrew is a Professor Emeritus ofSocial Psychology at the University of California,Santa Cruz. With over 400 publications, he is anexpert in Black-White relations in the United Statesand has conducted intergroup research in Australia,Europe, and South Africa. He formerly served as thePresident of the Society for the Psychological Studyof Social Issues.

Dr. Victoria C. Plaut is a Professor of Law andSocial Science and Affiliated Psychology Faculty atthe University of California, Berkeley. Dr. Plaut hasconducted extensive empirical research on diversityand intergroup relations and has investigated therelationship between implicit bias and property.

Dr. Katherine W. Phillips is the Paul CalelloProfessor of Leadership and Ethics in theManagement Division at Columbia Business Schoolat Columbia University. Dr. Phillips has publishednumerous papers on the effects of diversity on workteam process and performance, including empiricalwork on how diversity increases cognitive processingof information and motivation.

Dr. Lincoln Quillian is a Professor of Sociology atNorthwestern University and a faculty fellow atNorthwestern’s Institute for Policy Research. Dr.Quillian’s current work focuses on the causes and

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consequences of residential race and incomesegregation in American cities. His past workincludes studies of migration patterns amongneighborhoods that contribute to povertyconcentration, racial attitudes, and segregation insocial networks.

Dr. Jennifer Richeson is a MacArthur FoundationChair and a Professor of Psychology and AfricanAmerican Studies at Northwestern University. Herresearch focuses on psychological phenomenaassociated with diversity with an emphasis onantecedents and consequences of prejudice andstereotyping from both traditionally stigmatized anddominant groups. Her current work includesresearch on the dynamics and consequences ofinterracial contact and diversity.

Dr. Samuel R. Sommers is an Associate Professorof Psychology at Tufts University. An experimentalsocial psychologist, Dr. Sommers’ research examinesissues related to stereotyping, prejudice, and groupdiversity. His scholarly work focuses on two oftenoverlapping topics: race and social perception,judgment, and interaction; and the intersection ofpsychology and law.

Dr. Linda R. Tropp is a Professor of Psychology atthe University of Massachusetts at Amherst. Dr.Tropp has conducted extensive research on theeffects of intergroup contact, including metaanalytic,experimental, and longitudinal studies on theexpectations, experiences, and outcomes of contactamong diverse racial and ethnic groups.