Today the Supreme Court announced it would accept review in the case Texas Dept. of Hous. & Community Affairs v. Inclusive Communities Project on the one issue that has escaped resolution by the Court twice before. That issue is: Are disparate-impact claims cognizable under the Fair Housing Act?
The Court has twice granted certiorari to address this very issue, but both previous cases settled before oral argument. Attorneys for PLF filed a brief in support of review. More information about the case can be found here.
When the government and financial institutions can be held liable for discrimination claims based merely on a disparate impact theory, they are pressured into unconstitutional race-conscious decision-making to avoid such claims.
The Court’s announcement is good news. If disparate impact claims are cognizable, then every housing decision a city or any government agency makes must be made with an eye towards the racial impact. So, instead of progressing to a society where race is irrelevant in governmental decision-making, race becomes the dominant consideration. The Court should ultimately hold that the Equal Protection Clause prohibits that result.