Last week the Supreme Court heard oral argument to consider whether disparate impact may be considered discriminatory under the Fair Housing Act (Act) in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The Act protects people from discrimination in housing practices based upon their race, color, religion, national origin, disability, sex and familial status (having minor children). A disparate impact claim supports finding discrimination against a protected person even without an intent to discriminate against them, so long as the challenged practice has a disparate impact on a protected class of people.
The Texas Department of Housing and Community Affairs (Texas) was charged with allocating federal tax credits for low-income housing in a manner that disproportionately affected minorities. The Inclusive Communities Project is a non-profit that promotes integration in the Dallas area. Texas argued that disparate impact claims should not be allowed under the Act because the language of the statute does not support disparate impact claims. Several of the Supreme Court Justices raised questions about the 1988 amendments to the Act that created exceptions to disparate impact liability, pointing out that the exceptions would not make sense unless disparate impact claims were allowed under the Act. U.S. Solicitor General Don Verrilli appeared on behalf of the United States to support the Project and urged the Court to consider HUD regulations, which interpret the Act to allow disparate impact claims.
The Department of Housing and Urban Development (HUD) issued the following statement about the case:
Today, the Supreme Court of the United States considered an important legal doctrine that is critical to HUD’s ability to enforce the Fair Housing Act and to protect the rights of those whose housing choices would otherwise be limited because of their race, color, religion, national origin, disability, sex, or because they have children. The landmark Fair Housing Act of 1968 prohibits housing discrimination and has been interpreted to prohibit housing practices that produce an unjustified discriminatory effect, regardless of whether there was any evidence of intent to discriminate. HUD’s discriminatory effects rule did not create new law, rather formalized long-established agency practice and 40 years of judicial precedent from 11 appellate courts. We cannot turn back the clock in the progress we’ve made fighting housing discrimination. We now await the Court’s ruling.
A ruling in favor of disparate impact will make it easier to prove violations of the Act by not requiring proof of an intent to discriminate. Tough questions presented by the Court to both sides of the case during oral argument make it difficult to predict the outcome of the decision. An opinion is expected in June or July.