__ U.S. __ (2015), 13-1371, Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.

Docket Nº:13-1371
Citation:__ U.S. __, 135 S.Ct. 2507, 192 L.Ed.2d 514, 83 U.S.L.W. 4555
Attorney:Scott A. Keller argued the cause for petitioners. Michael M. Daniel argued the cause for respondent. Donald B. Verrilli, Jr. argued the cause for the United States, as amicus curiae, by special leave of the court.
Judge Panel:KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined. JUSTICE ALITO, with whom THE CHIEF JUSTICE, JU...
Case Date:June 25, 2015
Court:United States Supreme Court

The federal government provides low-income housing tax credits that are distributed to developers by state agencies, including the Texas Department of Housing and Community Affairs. The Inclusive Communities Project (ICP), which assists low-income families in obtaining affordable housing, brought a disparate-impact claim under Fair Housing Act sections 804(a) and 805(a), alleging that allocation of too many credits to housing in predominantly black ... (see full summary)


Page __

__ U.S. __ (2015)

135 S.Ct. 2507, 192 L.Ed.2d 514, 83 U.S.L.W. 4555, 25 Fla.L.Weekly Fed. S 441




No. 13-1371

United States Supreme Court

June 25, 2015

[135 S.Ct. 2509] Argued January 21, 2015

As Corrected July 2, 2015.

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.


747 F.3d 275, affirmed and remanded.


[135 S.Ct. 2510] [192 L.Ed.2d 524] The Federal Government provides low-income housing tax credits that are distributed to developers by designated state agencies. In Texas, the Department of Housing and Community Affairs (Department) distributes the credits. The Inclusive Communities Project, Inc. (ICP), a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing, brought a disparate-impact claim under § § 804(a) and 805(a) of the Fair Housing Act (FHA), alleging that the Department and its officers had caused continued segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. Relying on statistical evidence, the District Court concluded that the ICP had established a prima facie showing of disparate impact. After assuming the Department's proffered non-discriminatory interests were valid, it found that the Department failed to meet its burden to show that there were no less discriminatory alternatives for allocating the tax credits. While the Department's appeal was pending, the Secretary of Housing and Urban Development issued a regulation interpreting the FHA to encompass disparate-impact liability and establishing a burden-shifting framework for adjudicating such claims. The Fifth Circuit held that disparate-impact claims are cognizable under the FHA, but reversed and remanded on the merits, concluding that, in light of the new regulation, the District Court had improperly required the Department to prove less discriminatory alternatives.

The FHA was adopted shortly after the assassination of Dr. Martin Luther King, Jr. Recognizing that persistent racial segregation had left predominantly black inner cities surrounded by mostly white suburbs, the Act addresses the denial of housing opportunities on the basis of " race, color, religion, or national origin." In 1988, Congress amended the FHA, and, as relevant here, created certain exemptions from liability.

Held :

Disparate-impact claims are cognizable under the Fair Housing Act. Pp. 7-24.

(a) Two antidiscrimination statutes that preceded the FHA are relevant to its interpretation. Both § 703(a)(2) of Title VII of the Civil Rights Act of 1964 and § 4(a)(2) of the Age Discrimination in Employment Act of 1967 (ADEA) authorize disparate-impact claims. Under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, [135 S.Ct. 2511] 28 L.Ed.2d 158, and Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410, the cases announcing the rule for Title VII and for the ADEA, respectively, antidiscrimination laws should be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. Disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain [192 L.Ed.2d 525] the free-enterprise system. Before rejecting a business justification--or a governmental entity's analogous public interest--a court must determine that a plaintiff has shown that there is " an available alternative . . . practice that has less disparate impact and serves the [entity's] legitimate needs." Ricci v. DeStefano, 557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490. These cases provide essential background and instruction in the case at issue. Pp. 7-10.

(b) Under the FHA it is unlawful to " refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to a person because of race" or other protected characteristic, § 804(a), or " to discriminate against any person in" making certain real-estate transactions " because of race" or other protected characteristic, § 805(a). The logic of Griggs and Smith provides strong support for the conclusion that the FHA encompasses disparate-impact claims. The results-oriented phrase " otherwise make unavailable" refers to the consequences of an action rather than the actor's intent. See United States v. Giles, 300 U.S. 41, 48, 57 S.Ct. 340, 81 L.Ed. 493. And this phrase is equivalent in function and purpose to Title VII's and the ADEA's " otherwise adversely affect" language. In all three statutes the operative text looks to results and plays an identical role: as a catchall phrase, located at the end of a lengthy sentence that begins with prohibitions on disparate treatment. The introductory word " otherwise" also signals a shift in emphasis from an actor's intent to the consequences of his actions. This similarity in text and structure is even more compelling because Congress passed the FHA only four years after Title VII and four months after the ADEA. Although the FHA does not reiterate Title VII's exact language, Congress chose words that serve the same purpose and bear the same basic meaning but are consistent with the FHA's structure and objectives. The FHA contains the phrase " because of race," but Title VII and the ADEA also contain that wording and this Court nonetheless held that those statutes impose disparate-impact liability.

The 1988 amendments signal that Congress ratified such liability. Congress knew that all nine Courts of Appeals to have addressed the question had concluded the FHA encompassed disparate-impact claims, and three exemptions from liability in the 1988 amendments would have been superfluous had Congress assumed that disparate-impact liability did not exist under the FHA.

Recognition of disparate-impact claims is also consistent with the central purpose of the FHA, which, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of the Nation's economy. Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of disparate-impact liability. See, e.g., Huntington v. Huntington Branch, NAACP, 488 U.S. 15, 16-18, 109 S.Ct. 276, 102 L.Ed.2d 180. Recognition of disparate-impact liability under the FHA plays an important role in uncovering discriminatory [135 S.Ct. 2512] intent: it permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.

But disparate-impact liability has [192 L.Ed.2d 526] always been properly limited in key respects to avoid serious constitutional questions that might arise under the FHA, e.g., if such liability were imposed based solely on a showing of a statistical disparity. Here, the underlying dispute involves a novel theory of liability that may, on remand, be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in allocating tax credits for low-income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest their policies serve, an analysis that is analogous to Title VII's business necessity standard. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in the Nation's cities merely because some other priority might seem preferable. A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas. Courts must therefore examine with care whether a plaintiff has made out a prima facie showing of disparate impact, and prompt resolution of these cases is important. Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are " artificial, arbitrary, and unnecessary barriers." Griggs, 401 U.S. at 431, 91 S.Ct. 849, 28 L.Ed.2d 158. Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision. These limitations are also necessary to protect defendants against abusive disparate-impact claims.

And when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets or quotas might raise difficult constitutional questions.

While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, race may be considered in certain circumstances and in a proper fashion. This Court does not impugn local housing authorities' race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. These authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the...

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