This week the Supreme Court of the United States is hearing the case of Texas Dept. of Housing vs. Inclusive Communities Project, and while many in the industry welcome the expected rejection of disparate impact theory in housing, others oppose overturning its use.
In this case, the Texas Department of Housing 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. In October, the high court agreed to hear the case that could overturn the Obama administration’s position.
New York Attorney General Eric T. Schneiderman says he supports upholding disparate impact in the interpretation of the federal Fair Housing Act. Last year, he led a coalition of 16 other states in filing a brief defending the theory.
“The Fair Housing Act stands as one of our most important federal civil rights laws. No law has done more to eradicate unlawful residential segregation and promote equal access to housing opportunities. However, despite the progress we have made in working toward these goals, we continue to see significant racial segregation and discrimination in housing today,” Schneiderman said. “I urge the Court to reject this challenge and preserve a law that remains necessary to achieve the goals of integration and equal opportunity for all.”
Schneiderman and former Massachusetts Attorney General Martha Coakley submitted an amicus brief in the case, which was joined by 15 other states, including Arizona, California, Connecticut, Hawaii, Illinois, Minnesota, Missouri, New Hampshire, New Mexico, North Carolina, Oregon, Utah, Vermont, Virginia, and Washington.
The amicus brief argues that “[r]ecognition of disparate impact claims under the FHA not only is consistent with the text and structure of the statute, it is necessary to achieve the broad remedial goals of the statute.
“The disparate impact model originated as a judicial response to the practical challenges of detecting and proving bias in cases of hidden and covert discrimination, and it continues to serve this essential function today,” it says. The brief further states that “[w]ithout disparate impact claims, States and others will be left with fewer critical tools for combating the kinds of systemic discrimination that the FHA was intended to address.”
The Attorney General’s brief is available here.