WASHINGTON, DC: Less than four years ago, the U.S. Supreme Court recognized disparate impact causes of action under the Fair Housing Act. Tex. Dep’t of Housing and Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (2015). This means that a person alleging discrimination under the Fair Housing Act now needs to prove only that the defendant’s actions have a disproportionate adverse effect on a racial or other group, even if that defendant selected the criterion without discriminatory motive and that criterion is nondiscriminatory both by its terms and in its application.
By contrast, disparate treatment cases are triggered when a defendant takes certain actions because the plaintiff is a member of such a racial or other group. The Fair Housing Act indisputably covers disparate treatment claims and rightfully so, because this coverage is supported by both the Act’s text and history. As Southeastern Legal Foundation and Center for Equal Opportunity explain in a recent amicus brief asking the U.S. Supreme Court to take the case of Waples Mobile Home v. de Reyes, those underpinnings do not transfer easily to disparate impact claims.
In fact, they don’t transfer at all. Neither the text nor the history of the Fair Housing Act support recognition of disparate impact claims under the Act. Instead, as Justice Thomas explained, the judicial recognition of disparate impact claims rests on a foundation of “sand.” Inclusive Cmtys., 135 S. Ct. at 2526 (Thomas, J., dissenting). Even more, the construction of any statute to include a disparate impact cause of action raises constitutional problems and should be avoided. This is true not only where state actors are targeted by Congress using the Fourteenth or Fifteenth Amendment; it is also true where public or private actors are targeted by, for example, the Commerce Clause since the disparate impact approach in itself encourages race-based decision making.
The disparate impact approach to civil rights, especially in the interpretation and enforcement of the Fair Housing Act, is untenable as a matter of law and policy. It second-guesses nondiscriminatory selection criteria like that used by the petitioners and actually encourages race-based decision making. Those disturbing abuses of federal power come at the expense of liberty and limited federal government. Although the petitioners did not ask this Court to overrule Inclusive Communities, this case provides an excellent opportunity for the Court to revisit and overrule its fewer than four-year old expansion of the Fair Housing Act to disparate impact claims. The time to address the problems resulting from the disparate impact approach is now.
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