Morgan Williams is General Counsel of the National Fair Housing Alliance.
Today’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project broke no new ground. It simply reaffirmed the consistent finding of the federal courts over the past four decades that the Fair Housing Act bars not only intentional discrimination, but also policies that have an unwarranted disparate impact. In doing so, the Court’s majority correctly recognized that it was not construing a new law, but rather one with a long and proud history that did not warrant pruning back the law’s coverage so late in the day.
Justice Kennedy’s opinion appropriately begins by locating the Fair Housing Act against the background of this country’s long history of discrimination and segregation. The Congress that enacted the FHA, in the midst of the civil unrest of 1968, was well aware that the problems it was attacking were (as they remain) deeply rooted in American society. Accordingly, when enacting the FHA, Congress used language focusing on the results of decision makers’ policies rather than the motivation behind them.
And even if there were any doubt about Congress’s intent in 1968, Justice Kennedy’s opinion makes clear, no such doubt remained after Congress amended the Act in 1988. Congress knew full well that that all nine appellate courts to consider the question had concluded that disparate impact claims were viable under the original language. It chose to retain the relevant text and rejected an amendment that would have eliminated disparate impact liability. Congress even added exemptions to the Act that presuppose the existence of disparate impact liability and would be entirely superfluous without disparate impact. Thus, as Justice Kennedy recognized, Congress endorsed and ratified the consistent interpretation of the federal courts.
Congress did so for good reason. In the four decades that the Fair Housing Act has been construed to include disparate impact liability, housing, lending, and insurance markets – once bastions of overt segregation and discrimination – have made important strides toward becoming fair and open to all. This is not a coincidence. Disparate impact doctrine has been at the very core of the Act’s success in ending discriminatory housing practices and promoting integration. As Justice Kennedy recognized, the elimination of zoning laws and other housing restrictions that function unfairly against protected groups, and do so without sufficient justification, is “at the heartland” of disparate impact liability and the Fair Housing Act itself.