Supreme Court to hear oral argument in disparate impact case next week

January 13, 2015 | By WENCONG FA

Next Wednesday, the Supreme Court will hear oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. The issue presented in the case is whether disparate impact liability is cognizable under the Fair Housing Act. PLF has filed an amicus brief in this case, arguing that the Fair Housing Act does not impose disparate impact liability and that disparate impact may itself raise serious constitutional concerns.

Although the constitutional question is important, the Supreme Court is expected to decide this case as a matter of statutory interpretation. The Court has twice distinguished between language imposing liability for disparate treatment and language imposing liability for disparate impact. See for yourself in the clickable chart below:

FHA Disparate Impact Chart

The Fair Housing Act, like provisions imposing liability for disparate treatment, includes the word “refuse.” As everyone from Shakespeare (“deny thy father and refuse thy name“) to Don Corleone (“I’m going to make him an offer he can’t refuse“) knows, “refuse” signifies intent as opposed to some chance occurrence. By contrast, statutory language imposing disparate impact liability includes “affect,” a word that does not connote a requirement of intent. Dictionary examples of “affect” place some inanimate thing (“cold water” and “music”)—incapable of intent—as the object.

The Court can align the Fair Housing Act with constitutional notions of equal protection if it holds that Congress did not intend to impose disparate impact liability when it enacted the FHA. Nonetheless, PLF eagerly awaits the day when the Court will decide whether Congress can impose disparate impact liability without violating the Equal Protection Clause.