Supreme Court hears oral argument on Fair Housing Act and disparate impact

Today the Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., to determine whether the Fair Housing Act encompasses claims for disparate impact.  Attorneys for PLF filed a brief in that case, joined by many other organizations, arguing that the Fair Housing Act prohibits intentional discrimination only.  Our brief is here.

The threat of being sued under a theory of disparate impact encourages private and public decision makers to act on the basis of race.  As Justice Scalia observed in his concurrence in Ricci v Destefano, a disparate impact provision not only permits but affirmatively requires race-conscious decision making when a disparate impact violation would otherwise result.

The Supreme Court has repeatedly held that race-conscious decision making is presumptively unconstitutional.  Therefore, any law that requires, or even encourages private or public entities to act on the basis of race is also presumptively unconstitutional.

PLF’s Todd Gaziano, Executive Director of PLF’s DC Center and Senior Fellow in Constitutional Law, attended the oral argument.  He will be adding his thoughts and analysis about the argument here on the Liberty Blog.