Supreme Court Rules That Disparate Impact Claims Are Allowed Under Fair Housing Act

In a 5-4 decision, the court held that disparate impact claims are allowed because of the "results-oriented language" of the Fair Housing Act.

WASHINGTON — The Supreme Court Thursday ruled that claims of "disparate impact" can be brought under the Fair Housing Act of 1968.

The 5-4 closely divided decision — authored by Justice Anthony Kennedy, joined by the four more liberal justices — was a victory for civil rights advocates, who have been long concerned about how the high court would resolve the issue.

In January, the justices heard arguments in the case — which was brought back in 2008 by the Inclusive Communities Project against the Texas Department of Housing and Community Affairs.

The question that ultimately reached the Supreme Court is a relatively simple one: Whether "disparate impact" claims are able to be brought under the Fair Housing Act of 1968.

"Disparate impact" claims address policies that are not discriminatory on their face but have a "disparate impact" on a particular race, and civil rights advocates have said they are a key tool in addressing housing discrimination.

While the FHA makes no specific mention of whether such claims are covered by the law, every court of appeals to decide the issue and the federal government — through the Department of Housing and Urban Development — agree that such claims are permitted under the act.

"Congress' use of the phrase 'otherwise make unavailable' [in the FHA] refers to the consequences of an action rather than the actor's intent," Kennedy wrote for the court on Thursday. "This results-oriented language counsels in favor of recognizing disparate-impact liability."

The "disparate impact" question is one the court has been trying to review for several years now. Twice previously the justices have accepted a case to address the issue only to have it settle out of court before the justices could rule.

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