On Wednesday, January 21, 2015, the U.S. Supreme Court heard oral argument in the case of Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The case raises the issue of whether the federal Fair Housing Act prohibits actions that have a discriminatory effect (also called a “disparate impact”) on a protected class or only those in which there is an affirmative intent to discriminate.
All eleven Courts of Appeal that have considered the issue have held that the Act prohibits both types of conduct. The U.S. Department of Housing and Urban Development (HUD), which enforces the Fair Housing Act, has also issued regulations that prohibit actions that have a discriminatory effect in certain circumstances.
HUD issued a statement regarding the Supreme Court argument, calling the disparate impact/discriminatory effect doctrine “critical to HUD’s ability to enforce the Fair Housing Act” and stating:
The landmark Fair Housing Act of 1968 prohibits housing discrimination and has been interpreted to prohibit housing practices that produce an unjustified discriminatory effect, regardless of whether there was any evidence of intent to discriminate. HUD’s discriminatory effects rule did not create new law, rather formalized long-established agency practice and 40 years of judicial precedent from 11 appellate courts. We cannot turn back the clock in the progress we’ve made fighting housing discrimination. We now await the Court’s ruling.