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"Disparate Impact Upheld"

July/August 2015 issue of Poverty & Race

Last week’s Supreme Court decision in Texas v. Inclusive Communities Project, holding that disparate impact is cognizable under the Fair Housing Act, sparked much celebration as a victory for civil rights. Decades of precedent will remain standing, the constitutional foundation of this Act and other civil rights legislation is unshaken, and the important enforcement efforts of our colleagues in government and elsewhere can continue. Justice Kennedy’s opinion focused largely on the results-based language of the Act, relying on its sibling statutes, Title VII and the ADEA, as interpretive guides. The opinion acknowledged disparate impact doctrine’s crucial role in permitting victims of discrimination to “counteract unconscious prejudices and disguised animus…In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.” The opinion also detailed some of the same historical elements highlighted by the respondents and the amicus briefs: in particular, that concerns about entrenched segregation and racial exclusion sparked the Act’s passage and have undergirded its application over the years.

Although the opinion cautions that remedies should be “race-neutral” in order to avoid triggering “serious constitutional questions,” Justice Kennedy adheres to the framework established by the 2007 Parents Involved case, which made allowances for policy architecture that considers racial composition. (“While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion”—as with school site selection and attendance zoning.) Fair housing accountability and outcome-based programs will remain a focus of advocacy, as crucial mechanisms for integration—a benefit for our society in full (accruing to all racial groups), including our future generations.

Congratulations to the Inclusive Communities Project (ICP President Betsy Julian and Vice President Demetria McCain are members of PRRAC’s Board), to their lawyers, Mike Daniel and Laura Beshara, and to all of the lawyers and organizations who weighed in as amicus curiae.

See Professor Florence Wagman Roisman’s assessment of the decision in this issue.

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