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.
