Amicus Brief

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

The Court should find that disparate impact claims are not cognizable under the Fair Housing Act

Brief Amicus Curiae of Pacific Legal Foundation, Center for Equal Opportunity, Competitive Enterprise Institute, Cato Institute, Individual Rights Foundation, Reason Foundation, Project 21, and Atlantic Legal Foundation in Support of Petitioners

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

This case presents the question whether the Federal Fair Housing Act’s ban on racial discrimination can be violated by someone who does not engage in racial discrimination. The federal court of appeals for the 5th circuit allowed a “disparate impact” claim to proceed under the Act against the Texas Department of Housing and Community Affairs. For such a claim, the plaintiffs need not allege, nor prove, that individuals were treated differently because of their race. Instead, plaintiffs need only show that a neutral practice has a disproportionate effect-that is, a disparate impact-on some racial group.

The statutory text and the legislative history of the Fair Housing Act, as expressed by its proponents in Congress, establish that the Act was intended to apply solely to disparate treatment, not to actions having a disparate impact on protected classes. The Fair Housing Act makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” By its terms, the Act prohibits disparate treatment: that is, intentional discrimination.

This Court has consistently differentiated between language imposing liability for disparate treatment and language imposing liability for disparate impact. Congress imposes liability for disparate treatment by using language focusing on the defendant’s motives. By contrast, Congress imposes disparate impact liability by using language that clearly focuses on the effects of the defendant’s action. That language is conspicuously absent in the Fair Housing Act.

Consistent with the statutory text, the legislative history of the Fair Housing Act reveals that the purpose of the Act was to prohibit intentional refusals to sell or rent housing because of the race of the renter or buyer. Expanding the Act to include disparate-impact liability runs afoul of previously enacted federal legislation. Congress would not have drafted legislation in such a way as to contradict a previously enacted federal statute, without explicitly saying that it was doing so.

Subjecting government entities to disparate impact claims leads to unconstitutional race-conscious decision-making to avoid potential liability. This Court’s decision in Ricci, 557 U.S. 557, highlights the conflict between the disparate impact doctrine and constitutional guarantees of equal protection. Even before Ricci, this Court noted that “[p]referential treatment and the use of quotas by public employers subject to Title VII can violate the Constitution.”

Interpreting the Fair Housing Act to allow claims without any showing of discriminatory intent, even though Congress was silent as to such claims, would violate the canon of constitutional avoidance. When the constitutionality of a statute is challenged, if the statute is reasonably susceptible to two interpretations, the Court must adopt the construction which will save the statute from constitutional infirmity. Likewise, federal statutes cannot be construed to impinge upon important state interests without regard to the implications of our dual system of government. Before Congress may radically readjust the balance of state and national authority, it must be explicit as to its intent. No such intent can be found in either the text or legislative history of the Fair Housing Act.

For these reasons, this Court should find that disparate impact claims are not cognizable under the Fair Housing Act.