Today, the NAACP Legal Defense and Educational, Inc. (LDF) filed an amicus brief arguing that the Supreme Court of the United States should uphold a vital component of our nation’s civil rights laws known as the “disparate impact” standard.  The brief, filed in the case of Texas v. Inclusive Communities Project, highlights an often overlooked dimension of the country’s framework for advancing civil rights: the right to fair housing, which was established through the Fair Housing Act of 1968 (FHA).  Housing discrimination and segregation have significant ripple effects across the United States that touch upon education, economic opportunity, and upward social mobility, and have tremendous implications for communities of color. In the brief, LDF advances three principal arguments:

  • Persistent housing segregation imposes a host of interrelated socioeconomic harms that constrain individual potential, distort market dynamics, and justify ongoing disparate impact enforcement;
  • The disparate impact standard is a proven, fair, and effective way for courts to separate out policies and practices that are necessary to further legitimate, non-discriminatory interests; and
  • The Supreme Court should uphold this part of the FHA based on a straightforward interpretation, rather than unnecessarily reach other constitutional considerations. 

Texas v. Inclusive Communities Project questions whether a key tool created by the FHA, known as the disparate impact standard, can remain in place.  At issue is whether Texas’ use of low-income tax credits were deployed in ways that perpetuated rather than alleviated racial segregation in Dallas.  A local non-profit, the Inclusive Communities Project, brought suit under the disparate impact standard, claiming that Dallas’ allocation of the tax credits had an unjustifiable and highly disproportionate impact on African Americans.  The district court agreed with the plaintiffs and the U.S. Court of Appeals for the Fifth Circuit adopted the disparate impact standard – as every other court of appeals in the country to have ruled on the issue has done for decades.  Texas appealed this ruling to the Supreme Court and, for the third time in as many years, the Court granted a case to address the question of whether disparate impact is cognizable f under the FHA.

Disparate impact occurs when government or certain private actors unjustifiably pursue practices that have a disproportionately harmful effect on communities of color and other groups protected by the FHA. This standard is often used in challenging discrimination in mortgage lending, homeowners’ insurance, exclusionary zoning, redevelopment, and demolition of public housing.  Disparate impact helps to screen out covert racial discrimination as well as practices that may seem neutral on their face, but actually disproportionately perpetuate or exacerbate the effects of prior racial discrimination. 

Statement From Sherrilyn Ifill: “The harmful effects of housing discrimination go much deeper than we can possibly imagine.  Racial residential segregation continues to plague our society and challenge the important racial progress that has been made over decades.  The disparate impact standard is central to the legal battle for a vast array of civil rights protections, including fair housing.  We must recognize how policies and practices affect racial groups differently if we are to truly embrace fairness and equal opportunity.”

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