The Fair Housing Act of 1968 makes it illegal to sell or rent housing “because of race, color, religion, sex, familial status or national origin.” The provision prohibits the disparate treatment of individuals because of race or any of the other forbidden grounds it identifies, as when a real estate company refuses to sell any of its properties to, say, Hispanic buyers. But does the FHA also prohibit “disparate impact”—in which a practice neutral on its face and nondiscriminatory in its intent has a disproportionate adverse effect, statistically expressed, on some racial or other protected group?
The Supreme Court had never before addressed that question until it came before the justices last year in a case from Texas. The state housing authority distributes low-income housing tax credits (provided by the federal government) to developers, thus affecting where the housing is built. The Inclusive Communities Project (ICP), a Dallas nonprofit that helps low-income families find affordable housing, sued the department, alleging that it had violated the FHA by granting too many credits in mainly black inner-city areas and too few in mainly white suburban neighborhoods.
In making its case, the ICP advanced both disparate treatment and disparate impact claims. The district court rejected the disparate treatment claim. And the Supreme Court, addressing only whether disparate impact claims could be brought under the FHA, held that they could be. The Court then remanded the case for further proceeding consistent with its opinion and that of the Supreme Court.
Last week the district judge in the case, Sydney Fitzwater, dismissed it. “To prove a disparate impact claim,” he said, “the plaintiff must first identify a facially-neutral policy that has resulted in the disparate impact.” But the ICP had not met that threshold requirement.
Doubtless, in housing, there will be many more disparate impact cases brought. In his opinion for the Court in the ICP case, Kennedy anticipated such litigation by rejecting remedies in proven cases that “perpetuate race-based considerations rather than move beyond them.” Courts should be careful not to “impose racial targets or quotas.”
The fair housing beat deserves watching for whether numerical remedies—quotas—are imposed. Such remedies would likely trigger equal protection claims. And those claims would be filed in courts the vacancies on which—in case you’ve not heard—would be filled by the next president, the person we elect on November 8.
