Texas apartment group joins disparate impact challenge

Association says Fair Housing Act doesn’t allow doctrine

Texas Apartment Association is joining a challenge to the Fair Housing Act and the government’s use of the controversial disparate impact doctrine in housing.

TAA’s amicus curiae brief in the case of Texas Dept. of Housing vs. Inclusive Communities argues that the text and history of the law confirm that it does not allow disparate impact claims, but instead authorizes only claims based on intentionally discriminatory conduct.

“TAA goes on to explain that construing the Fair Housing Act to permit disparate-impact claims would impose severe consequences—unintended by Congress—on routine decision-making by housing providers. Sutherland represents TAA in the matter,” according to an analysis from

In October, the high court agreed to hear the case that could overturn the Obama administration’s heavy-handed use of a theory that says even if there’s no evidence of discrimination in housing, unequal outcomes prove there’s discrimination.

“This marks the third time in successive terms that the Supreme Court has agreed to hear a case presenting the question of whether disparate impact claims are permitted under the Fair Housing Act,” attorney Peter Cubita at Ballard Spahr told HousingWire. “In its two prior terms, the Court was poised to decide the question but the cases presenting it were settled shortly before oral argument. Although this case involves the allocation of tax credits for low-income housing projects, the issue presented is of great interest to housing creditors because of the history and magnitude of governmental fair lending settlements based upon the disparate impact doctrine.” 

In this case, Texas is seeking to overturn a Fifth Circuit Court of Appeals ruling that ordered it to spread affordable-housing subsidies and Section 8 housing in Dallas more evenly between black and white neighborhoods.

“As the brief explains, construing the Fair Housing Act to permit such disparate-impact claims subjects housing providers to costly, stigmatizing litigation based on conduct lacking any discriminatory motive or intent. As a practical matter, housing providers must develop rules and policies that ensure the safety of their residents and the economic viability of their properties,” analysts say. “Some basic policies inherent in a functioning rental property include screening tenants for certain criminal histories, ensuring that prospective tenants will be able to afford rent, and limiting tenants to an appropriate number of individuals for the size of a living space. Under a disparate-impact theory, these policies expose housing providers to litigation under the Fair Housing Act. Having to defend allegations of disparate impact, even when those allegations are proved to be without merit, often results in reputational injury and business disruption.”

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