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Supreme Court Decision Expected on Disparate Impact

by James F. McClister

A decision to redefine a landmark housing civil rights bill could come as early as tomorrow

FHA-Supreme-Court-Fair-Housing-Act-Texas-Inclusive-communities-project-disparate-impact

A handful of landmark cases in the Supreme Court this year – Obamacare and same-sex marriage – threaten to overshadow a soon forthcoming civil rights decision that could defang one of the country’s most historic pieces of anti-discrimination legislation: the Fair Housing Act of 1968.

In January, we reported on Texas Depart of Housing and Community Affairs v. The Inclusive Communities Project, a case beginning in 2008, in which the Inclusive Communities Project argued the state’s tax credit policy had a disparate impact on minorities.

The debate is now whether a disparate impact without discriminatory intent is barred under the FHA.

During earlier arguments, it was evident the nine justice bench was divided on the issue.

Justice Antonin Scalia said plainly that “racial disparity is not racial discrimination,” and used the NFL as an example. “The fact that the NFL is largely black players is not discrimination,” he said.

Chief Justice Roberts cast serious doubts on the validity of ICP’s complaints, pointing out the difficulty in categorizing impacts as “good” and “bad.” And Texas Solicitor General Scott Keller claimed the FHA lacked clear language supporting discriminatory-impact lawsuits. But Justice Ruth Bader Ginsberg countered, calling the official’s argument “a little artificial,” as FHA wasn’t approved for use in employment discrimination cases until 1971.

The Supreme Court is set to make a ruling by the end of the month, but it is rumored a decision could come as early as tomorrow.

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