On January 21, the U.S. Supreme Court held oral argument in
Texas Department of Housing and Community Affairs v. The
Inclusive Communities Project, Inc., a case in which, as we
previously reported
here and
here, the Petitioner has challenged the applicability of a
so-called "disparate impact" theory of liability under
the Fair Housing Act (FHA). While Supreme Court observers
will often tell you not to place too much weight on justices'
comments during oral argument as a predictor of the outcome, there
were a few exchanges worthy of mention.
Before delving into the oral argument, and by way of background,
the challenged disparate impact liability does not arise from
intentional acts of discrimination. Rather, disparate impact
refers to what plaintiffs or regulators consider
statistically-significant disparities between outcomes in a
protected group versus outcomes among non-protected groups or the
general population. In other words, under disparate impact
