Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., Brief AMicius Curiae in Support of Respondents

    No. 11-1507

In The

mprerne Court of tfje fHmteb States

T o w n sh ip  o f  M o u n t  H o l l y , e t  a l .,
Petitioners,

v.

M t . H o l l y  G a r d e n s  C itize n s  i n a c t i o n , In c ., et  a l .,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENTS

Sherrilyn  Ifill 
Director- Counsel 

Ch ristina  Swarns 
R eNik a  C. M oore 
V eronica  Joice 
NAACP Legal D efense 

& Educational  Fu n d , In c . 
40 Rector Street,

5th Floor
New York, NY 10006

Joshua  Civin  
Counsel o f Record 

JOHNATHAN SMITH 
NAACP Legal D efense 

& Educational Fu n d , Inc 
1444 I Street, NW,

10 th Floor
Washington, DC 20005
202-682-1300
jcivin@naacpldf.org

mailto:jcivin@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................iii
INTEREST OF AMICUS.............................................1
INTRODUCTION AND SUMMARY OF THE

ARGUMENT............................................................2
ARGUMENT................................................................. 7
I. Long experience with the adverse conse­

quences of redevelopment projects weighs 
against exempting them from disparate- 
impact enforcement..............................................7
A. The Township’s plans fit into a

broader pattern of “urban renewal” 
projects that have disproportionately 
affected African Americans......................... 8

B. Disparate-impact enforcement has 
helped ameliorate the adverse effects
of “urban renewal” ...................................... 12

II. The disparate-impact standard is worka­
ble, fair, and effective at rooting out unjus­
tified barriers to housing opportunity..............16
A. The threshold showing required at the

prima facie stage adequately polices 
the boundaries of disparate impact.........17

B. After a prima facie case is established, 
liability attaches only if the defendant 
fails to justify its policy or if its legiti­
mate objective can be achieved by 
some other less discriminatory means.... 19

C. Courts are adept at applying the bur­
den-shifting framework in the rede-



11

velopment context....................................... 22
III. The canon of constitutional avoidance is

inapplicable..........................................................25
A. Most FHA remedies do not trigger

strict scrutiny...........   26
B. Any racial classifications utilized to

remedy particular instances of dispa­
rate-impact discrimination can be ad­
dressed by case-specific application of 
strict scrutiny...............................................29

CONCLUSION...................................   37



Ill

TABLE OF AUTHORITIES
Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975).......................................... ............... 30, 31, 33

Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074 (3d Cir. 1996)............................ 14-15

Arrington v. City of Fairfield, 414 F.2d 687
(5th Cir. 1969)................................ ...... ................. 12

Boumediene v. Bush, 553 U.S. 723 (2008).............  25
Brown v. Artery Organization, Inc., 654 

F. Supp. 1106 (D.D.C. 1987).....................  1, 12-13
Brown v. Artery Organization, Inc., No. 86-

3285, 1987 WL 18471 (D.D.C. Oct. 2, 1987).....  13
Brown v. Artery Organization, Inc., No. 86-

3285, 1987 WL 16846 (D.D.C. Sep. 1, 1987).....  28
Bush v. Vera, 517 U.S. 952 (1996).......................... 29
Central Alabama Fair Housing Center v. 

Lowder Realty Co., 236 F.3d 629 (11th Cir.
2000) .................................................................................. 1

Charleston Housing Authority v. U.S. 
Department of Agriculture, 419 F.3d 729 
(8th Cir. 2005)...................................................23-24

City of Boerne v. Flores, 521 U.S. 507 (1997).......  32
City of Joliet v. Mid-City National Bank of 

Chicago, No. 05-6746, 2012 WL 5463792 
(N.D. 111. Nov. 5, 2012).................................. 11, 12

City of Richmond v. J.A. Croson Co., 488 
U.S. 469 (1989)...............................................  34, 35



IV

Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994)......... 1
Connecticut v. Teal, 457 U.S. 440 (1982)........... 32-33
Darst-Webbe Tenant Association Board v. St.

Louis Housing Authority, 417 F.3d 898 
(8th Cir. 2005)..................................................  21, 24

Fox v. U.S. Department of Housing & Urban 
Development, 468 F. Supp. 907 (E.D. Pa.
1979)......................................................................... 13

Graoch Associates #33, L.P. v. Louisville/ 
Jefferson County Metro Human Relations 
Commission, 508 F.3d 366 (6th Cir.
2007)................................................................. passim

Grutter v. Bollinger, 539 U.S. 306 (2003)............... 26
Griggs v. Duke Power Co., 401 U.S. 424 

(1971)............................................................... passim

Hallmark Developers, Inc. v. Fulton County,
466 F.3d 1276 (11th Cir. 2006)..................... 18, 19

Huntington Branch, NAACP v. Town 
of Huntington, 844 F.2d 926 (2d Cir.
1988)...................................................... 17, 28, 33, 34

In re Employment Discrimination Litigation 
Against Alabama, 198 F.3d 1305 (11th Cir.
1999)................................................................... 30-32

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977)........ 18, 30, 31

Jaimes v. Lucas Metropolitan Housing 
Authority, 833 F.2d 1203 (6th Cir. 1987)........  35-36
Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988)... 14, 18
Kelo v. New London, 545 U.S. 469 (2005)....  5, 9, 10



V

Kennedy Park Homes Association, Inc. v. City 
of Lackawanna, 436 F.2d 108 (2d Cir. 
1970)........................................................................

Langlois v. Abington Housing Authority,
234 F. Supp. 2d 33 (D. Mass. 2002)....................

Lewis v. City o f Chicago, 560 U.S. 205, 130 
S. Ct. 2191 (2010).......................................2, 17,

McCauley v. City of Jacksonville, 739 F. 
Supp. 278 (E.D.N.C. 1989)..................................

McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)..............................................................

McGhee v. Sipes, 334 U.S. 1 (1948)........................
Mountain Side Mobile Estates Partnership v. 

Secretary of Housing & Urban 
Development, 56 F.3d 1243 (10th Cir. 
1995)........................................................................

NAACP v. American Family Mutual 
Insurance Co., 978 F.2d 287 (7th Cir. 1992).......

Nevada Department of Human Resources v. 
Hibbs, 538 U.S. 721 (2003)..................................

Parents Involved in Community Schools v. 
Seattle School District No. 1, 551 U.S. 701 
(2007)............................................................. 2, 26-

Resident Advisory Board v. Rizzo, 564 F.2d 
126 (3d Cir. 1977)........................    13-14, 18,

Ricci v. DeStefano, 557 U.S. 557 (2009).... 27, 31,
Rust v. Sullivan, 500 U.S. 173 (1991)............. 25,
Shaw v. Hunt, 517 U.S. 899 (1996)........................
Shaw v. Reno, 509 U.S. 630 (1993).......................

.. 1

21

30

19

34
.. 1

20

.. 1

32

■27

27
35
29
29
29



VI

Shelley v. Kraemer, 334 U.S. 1 (1948)......................1
Tennessee v. Lane, 541 U.S. 509 (2004).................  32
Thompson v. U.S. Department of Housing &

Urban Development, No. 95-309, 2006 WL 
581260 (D. Md. Jan. 10, 2006).............................. 1

Town of Huntington v. Huntington Branch, 
NAACP, 488 U.S. 15 (1988)................................  17

Township of Mount Holly v. Mount Holly 
Gardens Citizens in Action, Inc., 133 S. Ct.
2824 (2013)........................................................  17

Trafficante v. Metropolitan Life Insurance 
Co., 409 U.S. 205 (1972)...........................................7

Tsombanidis v. West Haven Fire Department,
352 F.3d 565 (2d Cir. 2003).................................. 18

United States v. City of Black Jack, 508 F.2d 
1179 (8th Cir. 1974)...............................................2-3

United States v. Paradise, 480 U.S. 149 
(1987)........................      35

United States v. Starrett City Associates, 840 
F.2d 1096 (2d Cir. 1988).......................................  35

United States v. Virginia, 518 U.S. 515 
(1996)......................................................................  21

United States v. Yonkers Board of Education,
837 F.2d 1181 (2d Cir. 1987)...............................  27

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252 
(1977)......................................................................  30

Watson v. Fort Worth Bank & Trust, 487 
U.S. 977 (1988)...............................................passim



Wygant v. Jackson Board of Education, 
476 U.S. 267 (1986)........................................ 35

Court Filings and Docketed Cases
Consent Decree, Byrd v. First Real Estate 

Corp. o f Alabama, No. 95-3087 (N.D. Ala.
May 14, 1998)............................................................1

Consent Decree, United States v. 
Jacksonville Housing Authority, No. 3:00- 
1165-J-25A (M.D. Fla. Oct. 18, 2000), 
available at
http ://www. j ustice. gov/ crt/about/hce/docum 
ents/jaxsettle.php................................................... 28

Consent Decree, United States v. City of 
Pooler, No. 4:01-263 (S.D. Ga. June 16,
2003), available at
http://www.justice.gov/crt/about/hce/docum 
ents/poolersettle.php..............................................28

Price v. Gadsden Corp., No. 93-784 (N.D.
Ala. filed Aug. 30, 1993).......................................   1

Statutes and Congressional Materials
Fair Housing Act of 1968, Pub. L. No. 90- 

284, 82 Stat. 81 (1968) (codified as
amended at 42 U.S.C. §§ 3601-3631)..........passim

90 Cong. Rec. 3422 (1968).......................................... 7
114 Cong. Rec. 2277 (1968)...................................... 33
134 Cong. Rec. 10454 (1988)..............................  33-34



V l l l

Federal Rules and Regulations
24 C.F.R. § 100.500(a)............................................... 34
24 C.F.R. § 100.500(b)(2)..........................................22
24 C.F.R. § 100.500(c)(1)......................................17-18
24 C.F.R. § 100.500(c)(2).............................. . 19, 20
24 C.F.R. § 100.500(c)(3)....................................20, 21
U.S. Department of Housing & Urban Devel­

opment, Implementation of the Fair Hous­
ing A ct’s Discriminatory Effects Standard,
78 Fed. Reg. 11,460 (Feb. 15, 2013) 
(codified at 24 C.F.R. pt. 100)..................... passim

Other Authorities
Ronald H. Bayor, Race & the Shaping of 

Twentieth-Century Atlanta (1996)...................... 10
Debbie Gruenstein Bocian et al., Lost 

Ground 2011: Disparities in Mortgage 
Lending and Foreclosures, Center for Re­
sponsible Lending (November 2011), 
available at http://www.responsiblelend 
ing.org/mortgage-lending/research- 
analysis/Lost-Ground-2011 .pdf............................... 3

Civil Rights Division, U.S. Department of 
Justice, Title VI Legal Manual (2001), 
available at http://www.justice.gov/ 
crt/about/cor/coord/vimanual.php........................ 17

Joint Center for Housing Studies, State of 
the Nation’s Housing 2013 (2013), avail­
able at http://www.jchs.harvard.edu/sites 
/jchs.harvard.edu/files/son2013_bw.pdf.................3

http://www.responsiblelend
http://www.justice.gov/
http://www.jchs.harvard.edu/sites


IX

Kevin Douglas Kuswa, Suburfication, Segre­
gation, and the Consolidation of the High­
way Machine, 3 J.L. Soc’y 31 (2002)...................  10

Douglas S. Massey & Nancy A. Denton, 
American Apartheid: Segregation and the 
Making of the Underclass (1993)........................  15

Raymond A. Mohl, The Interstates and the 
Cities: Highways, Housing, and the Free­
way Revolt, Poverty & Race Research 
Action Council (2002),
http:www/prrac.org/pdf/ mohl.pdf........................ 9

NAACP Legal Defense & Educational Fund,
Inc. et al., The Future of Fair Housing: Re­
port on the National Commission of Fair 
Housing and Equal Opportunity (Dec.
2008), available at http://naacpldf.org/ 
files/publications/Future%20of%20Fair%2
OHousing.pdf............................................................ 2

john a. powell & Marguerite L. Spencer, Giv­
ing Them the Old “One-Two”: Gentrifica- 
tion and the K.O. of Impoverished Urban 
Dwellers of Color, 46 How. L.J. 433 (2003)......  11

Wendell E. Pritchett, The “Public Menace” of 
Blight: Urban Renewal and the Private 
Uses of Eminent Domain, 21 Yale L. &
Pol’y Rev. 1 (2003).................................................... 8

Patrick Sharkey, Stuck in Place: Urban 
Neighborhoods and the End of Progress 
Toward Racial Equality (2013)..................  9

Thomas J. Sugrue, The Origins of the Urban 
Crisis: Race and Inequality in Postwar De­
troit (1996).............................................................  10

http://naacpldf.org/


June Manning Thomas, Redevelopment and 
Race: Planning a Finer City in a Postwar 
Detroit (1997)....................................................  10-11

Margery Austin Turner et al., Housing Dis­
crimination against Racial and Ethnic 
Minorities 2012, U.S. Department of Hous­
ing & Urban Development (June 2013), 
http://www.huduser.org/portal/Publication 
s/pdf/HUD-514_HDS2012.pdf.................................3

Noah D. Zatz, Beyond the Zero-Sum Game: 
Toward Title VII Protection for Intergroup 
Solidarity, 77 Ind. L.J. 63 (2002)........................ 36

http://www.huduser.org/portal/Publication


1

INTEREST OF AMICUS1
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is a non-profit legal organization that, for 
more than seven decades, has helped African Ameri­
cans secure their civil and constitutional rights. 
Throughout its history, LDF has challenged public 
and private policies and practices that deny African 
Americans housing opportunities and isolate Afri­
can-American communities. See, e.g., McGhee u. 
Sipes, 334 U.S. 1 (1948) (companion case to Shelley 
v. Kraemer, 334 U.S. 1 (1948)) (racially restrictive 
covenants); Cent. Ala. Fair Hous. Ctr. v. Lowder Re­
alty Co., 236 F.3d 629 (11th Cir. 2000) (racial steer­
ing); Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) 
(racial discrimination in public housing and assis­
tance programs); NAACP v. Am. Family Mut. Ins. 
Co., 978 F.2d 287 (7th Cir. 1992) (redlining); Ken­
nedy Park Homes Ass’n, Inc. v. City of Lackawanna, 
436 F.2d 108 (2d Cir. 1970) (exclusionary zoning); 
Thompson u. U.S. Dep’t of Hous. & Urb. Dev., No. 95- 
309, 2006 WL 581260 (D. Md. Jan. 10, 2006) (federal 
government’s obligation to affirmatively further fair 
housing); Consent Decree, Byrd v. First Real Estate 
Corp. of Ala., No. 95-CV-3087 (N.D. Ala. May 14, 
1998) (racial steering); Price v. Gadsden Corp., No. 
93-CV-1784 (N.D. Ala. filed Aug. 30, 1993) (unfair

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amicus, its members, or 
its counsel made a monetary contribution to the preparation or 
submission of this brief. The parties have filed blanket consent 
letters with the Clerk of the Court pursuant to Supreme Court 
Rule 37.3.



2

lending practices); Brown v. Artery Org., Inc., 654 F. 
Supp. 1106 (D.D.C. 1987) (redevelopment plans that 
unfairly eliminate affordable housing); see also LDF 
et al., The Future of Fair Housing: Report on the Na­
tional Commission of Fair Housing and Equal Op­
portunity (Dec. 2008). LDF has also long played an 
instrumental role in advancing the doctrine of dispa- 
rate-impact discrimination before this Court. See, 
e.g., Lewis v. City of Chicago, 560 U.S. 205, 130 
S. Ct. 2191 (2010); Griggs v. Duke Power Co., 401 
U.S. 424 (1971).

INTRODUCTION AND 
SUMMARY OF ARGUMENT

Since the enactment of the Fair Housing Act of 
1968 (FHA), Pub. L. No. 90-284, 82 Stat. 81 (1968) 
(codified as amended at 42 U.S.C. §§ 3601-3631), in 
the immediate aftermath of Martin Luther King Jr.’s 
tragic assassination, this nation has made substan­
tial progress toward eliminating racial segregation 
and discrimination in public and private housing. 
Yet, as Justice Kennedy has emphasized:

. . . our tradition is to go beyond present 
achievements, however significant, and to 
recognize and confront the flaws and injus­
tices that remain. This is especially true 
when we seek assurance that opportunity is 
not denied on account of race. The enduring 
hope is that race should not matter; the real­
ity is that too often it does.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. 
No. 1, 551 U.S. 701, 787 (2007) (Kennedy, J., concur­
ring in part and concurring in the judgment).

In many housing markets across our nation, the



3

vestiges of de jure residential segregation still per­
sist. See, e.g., Margery Austin Turner et al., Housing 
Discrimination against Racial and Ethnic Minorities 
2012, U.S. Dep’t. of Hous. & Urb. Dev., xxiv (June 
2013) (“Information gaps, stereotypes and fears, lo­
cal regulatory policies, and disparities in purchasing 
power all work together to perpetuate segregation, 
even though many Americans—minority and 
white—say they want to live in more diverse 
neighborhoods.”). Moreover, our recent economic 
crisis has laid bare racially discriminatory housing 
policies and practices that continue to deny housing 
opportunities to African Americans and to isolate Af­
rican-American communities. See, e.g., Joint Ctr. for 
Hous. Studies, State of the Nation’s Housing 2013, 3 
(2013) (noting that the recent foreclosure crisis is 
“especially pronounced among African-Americans, 
whose homeownership rate has now dropped 5.8 per­
centage points from the peak and is back to its low­
est level since 1995”); Debbie Gruenstein Bocian et 
al., Lost Ground 2011: Disparities in Mortgage Lend­
ing and Foreclosures, Ctr. for Responsible Lending, 4 
(November 2011) (“African-American and Latino 
borrowers are almost twice as likely to have been 
impacted by the [economic] crisis.”).

In the ongoing struggle to ensure fair housing for 
all and promote a more just and inclusive society, 
one key tool is the FHA’s prohibition against dispa­
rate-impact discrimination. It provides a common- 
sense approach to eliminate those housing practices 
that are as “disastrous and unfair to private rights 
and the public interest as the perversity of a willful 
scheme.” United States u. City of Black Jack, 508 
F.2d 1179, 1185 (8th Cir. 1974) (internal quotation



4

marks omitted). LDF agrees with the Mount Holly 
Gardens Citizens in Action, Inc. and the other plain­
tiffs below, who are Respondents here, that this 
Court should adopt the consistent view of all eleven 
courts of appeals that have addressed the issue and 
hold that disparate-impact claims are authorized by 
the text, structure, and history of the FHA. Resp. 
Br. 17-40. To the extent there is any statutory am­
biguity, LDF further agrees with Respondents that 
deference is warranted to the consistent and long­
standing interpretation of the U.S. Department of 
Housing and Urban Development (HUD), as codified 
in the final rule that it recently promulgated. See 
HUD, Final Rule, Implementation of the Fair Hous­
ing Act’s Discriminatory Effects Standard, 78 Fed. 
Reg. 11,460 (Feb. 15, 2013); Resp. Br. 40-47.

LDF writes separately to emphasize three key 
points. First, the disparate-impact standard is par­
ticularly critical where, as here, government officials 
seek to demolish and redevelop a neighborhood with 
high concentrations of minority residents. Before 
this Court, no one contests that the Township has a 
legitimate interest in combating blight in the Mount 
Holly Gardens neighborhood. But see Pet. Br. 9 n.9 
(noting prior state-court litigation contesting the 
Township’s blight designation). Yet, according to 
Respondents, the Township could accomplish this 
goal “in a far less heavy-handed manner” than its 
proposal to acquire and raze all of the homes in the 
only predominantly minority neighborhood in the 
jurisdiction. Pet. App. 25a-26a; Pet. Br. 7. Only 11% 
of the new units that the Township proposes to con­
struct would be designated as affordable housing, 
and only 2% would be offered on a priority basis to



5

existing residents—many of whom are long-time 
homeowners. Resp. Br. 9. Moreover, there are very 
few other housing options available elsewhere in the 
Township or the surrounding region, due to the “se­
vere shortage of affordable housing” throughout Bur­
lington County, New Jersey. Id. at 10 (quoting J.A. 
61).

Regrettably, the Township’s plans for the Gar­
dens neighborhood are not unique. Rather, they fit 
into a broader historical and persistent pattern of 
“so-called ‘urban renewal’ programs” that “have long 
been associated with the displacement of blacks.” 
Kelo v. City of New London, 545 U.S. 469, 521-22 
(2005) (Thomas, J., dissenting). Indeed, “ [i]n cities 
across the country, urban renewal came to be known 
as ‘Negro removal.’” Id. (citation omitted).

Given that unfortunate context, the FHA should 
not, as the Township and its amici contend, immu­
nize municipalities from disparate-impact claims 
that challenge redevelopment plans purporting to 
“improve a blighted area.” See Pet. Br. 44-46; Int’l 
Mun. Lawyers Assoc. Amicus Br. 11, 13 [hereinafter 
“IMLA Br.”]. The disparate-impact standard pro­
vides an effective mechanism for redressing the un­
fair and unjustified denial of housing opportunities 
while protecting the bona fide, non-discriminatory 
interests of defendants. In the redevelopment con­
text, in particular, the disparate-impact standard 
encourages local governments to take into account 
less discriminatory alternatives. These include, for 
instance, creative solutions that could help ensure 
the availability of affordable housing for displaced 
residents either on-site or in nearby areas with ac­
cess to the sort of community assets that create an



infrastructure of opportunity, such as quality schools 
and jobs.

Second, there is no evidence that the well- 
established application of the disparate-impact stan­
dard to redevelopment plans, as well as other hous­
ing policies, is either infeasible or unduly burden­
some. Cf. Pet. Br. 39, 44-48; IMLA Br. 10-13; Am. 
Fin. Svcs. Assoc, et al. Amicus Br. [hereinafter 
“AFSA Br.”] 11-20; Nat’l Leased Hous. Assoc, et al. 
Amicus Br. [hereinafter “NLHA Br.”] 9, 11-12; Am. 
Ins. Assoc, et al. Amicus Br. [hereinafter “AIA Br.”] 
10. Although the Court declined to review the ap­
propriate standard for disparate-impact claims in 
this case, see Twp. of Mount Holly v. Mount Holly 
Gardens Citizens in Action, Inc., 133 S. Ct. 2824 
(2013) (limiting grant of certiorari to Question 1), 
examination of the functional operation of the bur- 
den-shifting framework—which has been endorsed 
by a majority of the courts of appeals and by HUD in 
its recently promulgated rule— shows that disparate- 
impact enforcement effectively distinguishes be­
tween claims that are undeserving and those that 
are meritorious. Courts have demonstrated, time 
and again, the workability of this framework, includ­
ing in cases, such as this one, challenging redevel­
opment projects.

Finally, the canon of constitutional avoidance 
does not preclude FHA disparate-impact enforce­
ment. The Township and its amici claim that dispa­
rate-impact enforcement necessarily leads to racial 
classifications, racial balancing, and racial quotas, 
see, e.g., Pet. Br. 38-44; Pac. Legal Found. Amicus 
Br. 17-20, but these are red herrings. In most FHA 
cases, court-approved remedies do not allocate relief

6



7

based on individual racial classifications and, thus, 
are facially race-neutral. To the extent that dispa- 
rate-impact remedies or voluntary compliance efforts 
by government officials trigger strict scrutiny in par­
ticular circumstances, that does not provide a basis 
for eliminating disparate-impact enforcement en­
tirely; rather, courts are well-equipped to apply rig­
orous constitutional review on a case-by-case basis.

ARGUMENT

I. Long experience with the adverse conse­
quences of redevelopment projects weighs 
against exempting them from disparate- 
impact enforcement.
Notwithstanding the contentions of the Township 

and its amici to the contrary, cf. Pet. 44-45; IMLA 
Br. 10-13, government officials’ plans to demolish 
and redevelop neighborhoods should not be categori­
cally excluded from disparate-impact enforcement. 
Especially where, as here, those neighborhoods are 
home to predominantly minority and low-income 
residents, careful review is warranted, because rede­
velopment plans do not necessarily improve housing 
options for displaced residents; nor do they always 
advance the FHA’s equally important goal of “re- 
plac[ing] segregated neighborhoods with ‘truly inte­
grated and balanced living patterns.”’ 90 Cong. Rec. 
3422 (1968) (Sen. Mondale); Trafficante v. Metro. 
Life Ins. Co., 409 U.S. 205, 211 (1972).

To the contrary, there is a long history of urban 
renewal projects that have disproportionately dis­
placed minority residents without either expanding 
affordable housing or promoting integration. Of 
course, not every redevelopment proposal violates



8

the FHA. Many receive broad-based community 
support. But disparate-impact enforcement is a 
critical tool to promote careful consideration of al­
ternative approaches to ensure that redevelopment 
projects advance—and do not undermine—the FHA’s 
key goals.

A. The Township’s plans fit into a broader 
pattern of “urban renewal” projects that 
have disproportionately affected African 
Americans.

No one contests that reducing neighborhood 
blight can be a legitimate and even praiseworthy 
government interest. Yet, there are numerous ex­
amples where municipalities’ designations of 
neighborhoods as “blighted” have been “infused with 
racial and ethnic prejudice.” Wendell E. Pritchett, 
The “Public Menace” of Blight: Urban Renewal and 
the Private Uses of Eminent Domain, 21 Yale L. & 
Pol’y Rev. 1, 6 (2003). “While [the term] purportedly 
assessed the state of urban infrastructure, blight 
was often used to describe the negative impact of 
certain residents on city neighborhoods” and “justify” 
their removal. Id.

In many cases, both past and present, urban re­
newal projects have used blight reduction in pre­
dominantly minority neighborhoods as a fagade to 
facilitate other municipal goals that have had little 
to do with enhancing housing opportunities for resi­
dents. These priorities have included constructing 
highways, developing shopping districts, expanding 
facilities for large public or private institutions, or 
constructing middle-class or luxury residences to 
lure professionals and white-collar workers. See,



9

e.g., Raymond A. Mohl, The Interstates and the Cit­
ies: Highways, Housing, and the Freeway Revolt, 
Poverty & Race Research Action Council, 3 (2002) 
(“Highway builders and downtown redevelopers had 
a common interest in eliminating low-income hous­
ing and, as one redeveloper put it in 1959, freeing 
blighted areas ‘for higher and better uses.’” (citation 
omitted)). As one scholar recently concluded, “urban 
renewal was more a policy for economic revitaliza­
tion than for housing, and the true benefits of urban 
renewal went to private developers.” Patrick 
Sharkey, Stuck in Place: Urban Neighborhoods and 
the End of Progress Toward Racial Equality 61-62 
(2013). Like blight reduction, none of these goals are 
objectionable in and of themselves. All too often, 
however, government officials have been indifferent 
or outright hostile to alternatives that would have 
accomplished legitimate municipal objectives while 
still creating or preserving affordable housing for the 
residents whose homes were demolished.

Beginning in the mid-twentieth century, urban 
renewal “brought about an entirely new level of seg­
regation in urban neighborhoods, by race and by 
class.” Id. at 62. African Americans and other racial 
minorities were disproportionately displaced by 
these projects. See, e.g., Kelo, 545 U.S. at 522 (Tho­
mas, J., dissenting) (“Of all the families displaced by 
urban renewal from 1949 through 1963, 63 percent 
of those whose race was known were nonwhite.” (ci­
tation omitted)).2 Displaced minority residents were

2 While LDF endorses Justice Thomas’s analysis of the dis­
parate impacts of urban renewal, we take no position on the 
constitutionality of the eminent domain action at issue in Kelo.



10

often forced to relocate to other high-poverty, minor­
ity-concentrated neighborhoods, which were typi­
cally even further isolated from access to decent jobs 
and quality schools. See, e.g., Kevin Douglas Kuswa, 
Suburfication, Segregation, and the Consolidation of 
the Highway Machine, 3 J.L. Soc’y 31, 53 (2002) (de­
scribing how “a governing apparatus operating 
through housing and the highway machine imple­
mented policies to segregate and maintain the isola­
tion of poor, minority, and otherwise outcast popula­
tions”).

For example, urban renewal projects in Atlanta 
during the 1950s and 1960s tore down predomi­
nantly African-American “slums” to construct a sta­
dium, a civic center, and an expressway. See Ronald 
H. Bayor, Race & the Shaping of Twentieth-Century 
Atlanta 70 (1996). In the process, these projects de­
stroyed more housing than was rebuilt, and the 
overwhelmingly African-American residents were 
relocated, over their objections, to outlying, isolated 
housing projects. See id. at 70-71; see also Kelo, 545 
U.S. at 522 (Thomas, J., dissenting) (“Public works 
projects in the 1950’s and 1960’s destroyed predomi­
nantly minority communities in St. Paul, Minnesota, 
and Baltimore, Maryland.”).

In the same period, Detroit engaged in wide­
spread urban renewal, including demolition of di­
lapidated housing predominantly occupied by Afri­
can Americans in the Gratiot area, east of the busi­
ness district. See June Manning Thomas, Redevel­
opment and Race: Planning a Finer City in a Post­
war Detroit 55 (1997). “The major flaw with this 
project was its effects on the original residents of the 
sites. Like early clearance projects throughout the



11

United States, the Gratiot project eliminated more 
low-income housing than it produced, and it abused 
and alienated Black inner-city residents in the proc­
ess.” Id. at 56. When asked why the area east of the 
business district was chosen for redevelopment when 
the area west of it was also in poor condition, one 
planner noted that the only “practical difference” 
was that west-side residents were predominantly 
white. Id. at 58. Moreover, this project, like so 
many others in Detroit and elsewhere, “forced the 
households with the least resources to move at a 
time when the city’s tight housing market could not 
accommodate them.” Thomas J. Sugrue, The Origins 
of the Urban Crisis: Race and Inequality in Postwar 
Detroit 50 (1996).

The lingering effects of urban renewal have con­
tinued into the present, and in some cases, recent 
redevelopment projects seemingly have failed to 
learn the lessons of history. See, e.g., City o f Joliet v. 
Mid-City Nat’l. Bank of Chicago, No. 05-6746, 2012 
WL 5463792, at *1, *9 (N.D. 111. Nov. 5, 2012) (vast 
majority of tenants in an area slated for demolition 
were “very low income, African-Americans for whom 
there was effectively no alternative housing in the 
city”); john a. powell & Marguerite L. Spencer, Giv­
ing Them the Old “One-Two”: Gentrification and the 
K.O. of Impoverished Urban Dwellers of Color, 46 
How. L.J. 433, 458-59 (2003) (exodus of thousands of 
low-income, minority families from Washington, 
D.C. in 1990-2000 was attributable to revitalization 
and gentrification projects).



12

B. Disparate-impact enforcement has 
helped ameliorate the adverse effects of 
urban renewal.

In some cases, residents of affected communities 
mobilized to challenge the loss of their neighbor­
hoods to urban renewal and the failure to provide 
replacement housing on-site or in opportunity-rich 
communities elsewhere.

Some litigated constitutional or FHA disparate- 
treatment claims, with varying degrees of success. 
See, e.g., Arrington u. City of Fairfield, 414 F.2d 687, 
692 (5th Cir. 1969) (reversing dismissal and finding 
that plaintiffs were entitled to have the chance “to 
show that the City will knowingly and actively pre­
cipitate the dislocation of persons who, because of a 
citywide practice of residential discrimination, will 
have no place to go”). For instance, residents of 
Joliet, Illinois recently challenged the city’s stated 
purposes in condemning certain property— i.e., to 
eliminate blight and improve the health, safety, and 
welfare of the tenants— as pretexts for discrimina­
tion against low-income African Americans. City of 
Joliet, 2012 WL 5463792, at *9.

Yet disparate-impact claims often have been 
critical when practices appeared facially neutral. In 
Alexandria, Virginia, for instance, LDF filed a law­
suit challenging the conversion of units in two 
apartment complexes from low-rent to high-rent, be­
cause it would have resulted in the displacement of 
their overwhelmingly African-American and His­
panic tenants. Brown u. Artery Org., 654 F. Supp. 
1106, 1108-09, 1117 (D.C. Cir. 1987). The district 
court granted a preliminary injunction, after finding



13

“extensive proof of discriminatory effect,” and noting 
that the “vast majority” of the approximately 2,000 
tenants in the two complexes would be unable to find 
affordable housing anywhere else in Alexandria due 
to “low vacancy rates,” “high rents for available 
apartments,” and “the continued existence of racial 
discrimination” in the housing market. Id. As a re­
sult, “according to plaintiffs, such progress as may 
have been made in recent times with respect to the 
inclusion of significant numbers of blacks and other 
minorities in the Alexandria population will largely 
be wiped out: that city will, once again, be essen­
tially lily-white.” Id. The case ultimately settled. 
See Brown v. Artery Org., No. 86-3285, 1987 WL 
18471 (D.D.C. Oct. 2, 1987) (final approval of settle­
ment).

Similarly, in Fox v. U.S. Department of Housing 
and Urban Development, homeowners and renters 
“alleged that defendants’ urban renewal activities 
drove low and moderate income persons, predomi­
nantly nonwhites, out of [Philadelphia^ Washington 
Square West] Area and transformed a formerly ra­
cially and economically integrated community into a 
predominantly white, affluent one.” 468 F. Supp. 
907, 910 (E.D. Pa. 1979). The court approved a set­
tlement requiring the construction or rehabilitation 
of 131 low-income housing units as part of the pro­
ject. Id. at 911, 919. In the order approving the set­
tlement, the court noted that “plaintiffs appear to 
have a good chance of proving that the effects of de­
fendants’ urban renewal activities were discrimina­
tory.” Id. at 915; see also Resident Advisory Bd. v. 
Rizzo, 564 F.2d 126, 146 (3d Cir. 1977) (permitting 
disparate-impact challenge to Philadelphia’s failure



14

to construct replacement housing as part of an urban 
renewal project); Keith v. Volpe, 858 F.2d 467, 484 
(9th Cir. 1988) (holding that the City of Hawthorne, 
California violated the FHA by failing to offer a le­
gitimate justification for its refusal to approve con­
struction of housing for low- and moderate-income 
residents displaced by freeway construction, which 
had twice the adverse impact on minorities).

In these and other contexts, disparate-impact en­
forcement serves two interrelated purposes. First, 
as described in greater detail in Section III.B infra, 
it helps root out the subtle and sophisticated types of 
discrimination that are often more commonplace in 
today’s society than instances of overt racial animus. 
Resp. Br. 46. As the Third Circuit has noted in the 
employment context:

Anti-discrimination laws and law­
suits have “educated” would-be viola­
tors such that extreme manifestations 
of discrimination are thankfully 
rare. . . . Regrettably, however, this in 
no way suggests that discrimination 
based upon an individual’s race, gender, 
or age is near an end. Discrimination 
continues to pollute the social and eco­
nomic mainstream of American life, and 
is often simply masked in more subtle 
forms. It has become easier to coat 
various forms of discrimination with 
the appearance of propriety, or to as­
cribe some other less odious intention to 
what is in reality discriminatory behav­
ior. In other words, while discrimina­
tory conduct persists, violators have



15

learned not to leave the proverbial 
“smoking gun” behind.

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 
1081-82 (3d Cir. 1996).

Second, as also explained further in Part III.B in­
fra, disparate-impact enforcement helps eliminate 
housing policies and practices that may be facially 
race-neutral but have the effect of perpetuating seg­
regation and “freezing]” in place a discriminatory 
“status quo.” Griggs v. Duke Power Co., 401 U.S. 
424, 430 (1971). The legacy of racial segregation and 
other discriminatory policies intentionally perpe­
trated by government actors at all levels continue to 
shape key features of the housing “status quo,” in­
cluding: (a) the concentration of African Americans 
and other racial minorities into neighborhoods iso­
lated from quality educational and economic oppor­
tunities; and (b) limitations on the availability of af­
fordable housing opportunities elsewhere. See gen­
erally Housing Scholars Amicus Brief; Douglas S. 
Massey & Nancy A. Denton, American Apartheid: 
Segregation and the Making of the Underclass 
(1993). The FHA’s prohibition against disparate- 
treatment discrimination, alone, would be insuffi­
cient to challenge policies and practices that have 
the effect, if not the intent, of perpetuating a dis­
criminatory status quo.

Thus, long experience weighs strongly against ac­
cording redevelopment projects a blanket exemption 
from disparate-impact enforcement, as the Township 
and its amici propose. See Pet. 44-45; IMLA Br. 10- 
13. In any event, HUD reasonably considered and 
rejected similar proposals for “safe harbors or ex­



16

emptions from discriminatory effects liability” when 
it finalized its recently promulgated disparate- 
impact rule. 78 Fed. Reg. at 11,477. HUD correctly 
“note[d] . . . that Congress created various exemp­
tions from liability in the text of the Act, and that in 
light of this and the Act’s important remedial pur­
poses, additional exemptions would be contrary to 
Congressional intent.” Id. (internal citation omit­
ted); see also Graoch Assocs. #33, L.P. v. Louis­
ville/ Jefferson County Metro Human Relations 
Comm’n, 508 F.3d 366, 374 (6th Cir. 2007) (declining 
to exempt from disparate-impact liability the refusal 
of landlords to participate in a Section 8 program for 
low-income tenants).
II. The disparate-impact standard is workable, 

fair, and effective at rooting out unjustified 
barriers to housing opportunity.
Not only is the application of the disparate- 

impact standard to redevelopment plans (and other 
housing policies) consistent with the purposes of the 
FHA, but there is also no evidence that the use of 
the disparate-impact standard in any context leads 
to the parade of horribles conjured up by the Town­
ship and its amici. See, e.g., Pet. Br. 45 (“local gov­
ernments seeking to avoid disparate-impact litiga­
tion would face strong political and economic incen­
tives to build inefficiencies into a redevelopment 
plan”); IMLA Br. 3 (disparate-impact liability would 
undermine cities’ efforts “to promote safe and sani­
tary housing conditions and protect the welfare of all 
residents”); NLHA Br. 8 (there would be no way for a 
housing provider to determine, prior to a court or 
HUD decision on the issue, whether its facially- 
neutral policies violate the FHA). Although the dis­



17

parate-impact burden-shifting framework is not di­
rectly at issue in this case, Twp. of Mount Holly, 133 
S. Ct. at 2824 (limiting certiorari to Question 1), un­
derstanding how it operates in practice may be help­
ful in debunking claims that disparate-impact en­
forcement is unworkable or burdensome. The bur­
den-shifting framework has proven to be a feasible 
approach to protect those policies and practices that 
are necessary to achieve legitimate, non- 
discriminatory objectives, as illustrated not only by 
its long-standing application in fair housing cases, 
see, e.g., Huntington Branch, NAACP u. Town of 
Huntington, 844 F,2d 926, 939 (2d. Cir. 1988), aff’d, 
Town of Huntington v. Huntington Branch, NAACP, 
488 U.S. 15 (1988) (per curiam), but also in equal 
employment litigation, see, e.g., Lewis v. City of Chi­
cago, 560 U.S. 205, 130 S. Ct. 2191 (2010); Griggs, 
401 U.S. 424, and other contexts, see, e.g., Civil 
Rights Division, U.S. Dep’t of Justice, Title VI Legal 
Manual 47-53 (2001).

A. The threshold showing required at the 
prima facie stage adequately polices the 
boundaries of disparate impact.

In the Title VII context, this Court has made 
clear that the first stage of the three-part burden- 
shifting framework, which requires a prima facie 
showing of disparate impact, imposes “constraints 
that operate to keep [disparate-impact] analysis 
within its proper bounds.” Watson v. Fort Worth 
Bank & Trust, 487 U.S. 977, 994 (1988). The same 
rationale applies under the FHA.

To begin, plaintiffs at the prima facie stage must 
offer evidentiary proof that “a challenged practice



18

caused or predictably will cause a discriminatory ef­
fect.” 24 C.F.R. § 100.500(c)(1). This Court has es­
chewed a “rigid mathematical formula” for the ad­
verse effects showing. Watson, 487 U.S. at 995. In­
stead, the Court has expressed a preference for a 
“case-by-case approach” to accommodate the ‘“infi­
nite variety”’ of statistical methods and the reality 
that the ‘“usefulness [of different methods] depends 
on all of the surrounding facts and circumstances.’” 
Id. at 995 n.3 (quoting Int’l Bhd. of Teamsters u. 
United States, 431 U.S. 324, 340 (1977)). In its final 
regulation, HUD endorsed the same “case-by-case” 
approach. 78 Fed. Reg. at 11,469; see also id. at 
11,468 (emphasizing that “ [w]hether a particular 
practice results in a discriminatory effect is a fact- 
specific inquiry”). Defendants may utilize a variety 
of tools to challenge the reliability of plaintiffs’ sta­
tistical evidence. See Watson, 487 U.S. at 996 (de­
scribing different methods to refute plaintiffs’ data).

Moreover, plaintiffs do not establish a prima facie 
case unless they demonstrate a causal relationship 
between the disputed practice and the discrimina­
tory effect. 24 C.F.R. § 100.500(c)(1). Courts of ap­
peals have recognized that inferences may be util­
ized to establish this causal link. See, e.g., Hallmark 
Developers, Inc. v. Fulton Cnty., 466 F.3d 1276, 
1287 (11th Cir. 2006) (collecting cases); Tsombanidis 
v. W. Haven Fire Dept, 352 F.3d 565, 577 (2d Cir. 
2003) (supporting similar causal analysis); Keith, 
858 F.2d at 484 (same); Rizzo, 564 F.2d at 142 
(same).

In this case, for example, the Third Circuit con­
cluded that Respondents had provided sufficient evi­
dence of their prima facie case to withstand sum­



19

mary judgment. Pet. App. 15a. Observing that “ [n]o 
single test controls,” id. (quoting Hallmark Develop­
ers, 466 F.3d at 1286), the Third Circuit determined 
that plaintiffs’ statistical showing “plausibl[y]” dem­
onstrated that African Americans and Latinos resid­
ing in the Mount Holly Gardens neighborhood would 
be disproportionately displaced by the township’s re­
development plan, id. “ [T]he vast majority” would 
not be able to afford the proposed market-rate units 
or find affordable housing elsewhere in the region. 
Id. at 10a.

This standard by no means guarantees plaintiffs 
success at the prima facie stage. Courts can and do 
reject disparate-impact claims that fail to provide 
sufficient evidence, through inferences or otherwise, 
of a causal relationship between the disputed prac­
tice and its alleged adverse effects. See, e.g., 
McCauley v. City of Jacksonville, 739 F. Supp. 278, 
282 (E.D.N.C. 1989) (granting summary judgment to 
a municipality due to the lack of “evidence in the re­
cord from which one could infer that a significantly 
higher percentage of . . . families [qualified to rent 
low-income units] would have been black”).

B. After a prima facie case is established, li­
ability attaches only if the defendant 
fails to justify its policy or if its legiti­
mate objective can be achieved by some 
other less discriminatory means.

Importantly, disparate-impact liability does not 
attach unless the defendant fails to show that the 
disputed policy “is necessary to achieve one or more 
substantial, legitimate, nondiscriminatory interests.” 
24 C.F.R. § 100.500(c)(2). If the defendant succeeds



20

at this second stage, plaintiffs must then demon­
strate that those interests “could be served by an­
other practice that has a less discriminatory effect.” 
Id. at § 100.500(c)(3).

Defendants may rebut a prima facie case of dis­
parate impact by demonstrating that the challenged 
practice is justified by an interest that is “substan­
tial” ii.e., “a core interest of the organization that has 
a direct relationship to the function of that organiza­
tion”), “legitimate” (i.e., “genuine and not false”), and 
itself “nondiscriminatory.” 78 Fed. Reg. at 11,470. 
Provided these criteria are satisfied, there is no dis­
pute that legitimate government interests may in­
clude alleviating blight, as in the instant case, or 
protecting local infrastructure, such as sewage sys­
tems, see Mountain Side Mobile Estates P ’ship v. 
Sec’y of Hous. & Urban Dev., 56 F.3d 1243, 1255-57 
(10th Cir. 1995), or addressing quality of life con­
cerns, such as density, traffic flow, and pedestrian 
safety, see id.

Therefore, the objections of the Township and its 
amici—that they will be precluded from pursuing le­
gitimate business goals, see AFSA Br. 12-13; AIA Br. 
9-10, or promoting the public welfare, Pet. Br. 44-48; 
NLHA Br. 9—are unfounded. The FHA’s prohibition 
against disparate-impact discrimination does not 
condemn policies simply because they have adverse 
effects. Rather, it precludes only those policies that 
have adverse effects and are unnecessary to the 
achievement of the defendant’s substantial, legiti­
mate, non-discriminatory goals. 24 C.F.R. 
§ 100.500(c)(2); see Graoch Assocs., 508 F.3d at 374- 
75 (“Of course, not every housing practice that has a 
disparate impact is illegal. We use the burden-



21

shifting framework described above . . .  to distin­
guish the artificial, arbitrary, and unnecessary bar­
riers proscribed by the FHA from valid policies and 
practices crafted to advance legitimate interests.”).3

If defendants make this showing of a substantial, 
legitimate, non-discriminatory interest, the case pro­
ceeds to the third stage of the burden-shifting 
framework, where plaintiffs must propose an alter­
native, which can then be compared to the chal­
lenged practice. 24 C.F.R. § 100.500(c)(3); see, e.g., 
Pet. App. 24a-28a; Langlois v. Abington Hous. Auth., 
234 F. Supp. 2d 33, 70 (D. Mass. 2002). The trier of 
fact must then determine whether plaintiffs’ pro­
posal is workable and furthers defendants’ legiti­
mate goals while reducing the disparate effects on 
the protected class. See Pet. App. 26a-27a; Darst- 
Webbe Tenant Ass’n Bd. v. St. Louis Hous. Auth., 417 
F.3d 898, 902-03 (8th Cir. 2005). The feasibility of

3 While some amici supporting the Township argue that the 
burden should not shift to the defendant at the second stage, 
see AFSA Br. 13 n. 22, defendants have better knowledge of 
and access to information regarding their own interests and 
how best to serve them. See 78 Fed. Reg. at 11,473-474. More­
over, allocating the burden to plaintiffs at the second stage 
would have limited utility given that they bear the burden of 
proof at the third stage of demonstrating that “the substantial, 
legitimate, non-discriminatory interests supporting the chal­
lenged practice could be served by another practice that has a 
less discriminatory effect.” 24 C.F.R. § 100.500(c)(3). Such a 
showing by plaintiffs at the third stage naturally requires some 
understanding of the actual grounds upon which the defen­
dants relied when they adopted the policy or practice. Cf. 
United States v. Virginia, 518 U.S. 515, 535-36 (1996) (discuss­
ing “actual purpose” requirement in context of equal protection 
challenge).



22

the alternative offered by plaintiffs “must be sup­
ported by evidence, and may not be hypothetical or 
speculative.” 24 C.F.R. § 100.500(b)(2); 78. Fed. Reg. 
at 11,473.

Accordingly, any allegation that the disparate- 
impact standard requires courts to ignore, for exam­
ple, a lender’s interest in assessing credit risk, see 
AFSA Br. 12-13, is unfounded. “ [A] less discrimina­
tory alternative need not be adopted unless it could 
serve the substantial, legitimate, nondiscriminatory 
interest at issue.” 78 Fed. Reg. at 11,473. As HUD 
noted in finalizing its rule, “if the lender’s interest in 
imposing the challenged practice relates to credit 
risk, the alternative would also need to effectively 
address the lender’s concerns about credit risk.” Id. 
Liability results only if the fact-finder determines 
that a challenged practice is not “necessary” to de­
fendants’ legitimate interests because another prac­
tice, offered by plaintiffs, can effectively serve those 
same interests. Id. at 11,475 (noting that the “bur­
den-shifting framework” distinguishes “unnecessary 
barriers” from “valid policies and practices crafted to 
advance legitimate interests”) (quoting Graoch As- 
socs., 580 F.3d at 374-75). This means that redevel­
opment plans that have both beneficial and dis­
criminatory effects may still be unlawful if there is 
another, less discriminatory means to accomplish 
the same objective.

C. Courts are adept at applying the burden- 
shifting framework in the redevelopment 
context.

In the redevelopment context, courts are well- 
equipped to use the burden-shifting framework to



23

distinguish practices that have an unjustified dis­
criminatory effect from those that are necessary to 
serve legitimate interests.

For instance, tenants brought a disparate-impact 
claim against the Charleston, Missouri Housing Au­
thority, challenging its revitalization plan that in­
cluded the demolition of public housing units pre­
dominantly occupied by African-American tenants. 
Charleston Hous. Auth. v. U.S. Dep’t o f Agric., 419 
F.3d 729, 733 (8th Cir. 2005). The Eighth Circuit 
affirmed the district court’s conclusion that, at the 
second stage of the burden-shifting analysis, the 
Housing Authority’s proffered interests were not le­
gitimate because “they were unsupported by evi­
dence.” Id. at 741.

With respect to the Housing Authority’s conten­
tion that its actions were necessary to reduce the 
density of low-income housing in the area, the dis­
trict court found that the “Housing Authority had 
mischaracterized the density by overstating the 
number of low-income rental units contained within 
the area under examination.” Id. at 741. The Hous­
ing Authority also claimed “a need to eliminate a 
housing design that contributed to a concentration of 
criminal activity and drug use,” but “ [t]he statistical 
evidence did not support [the Housing Authority’s] 
assertion that crime was a particular problem at the 
apartments.” Id. (quoting district court opinion). 
Finally, the Housing Authority claimed “a lack of 
funding to make improvements,” but the district 
court found that “the Housing Authority’s records 
. . . belied its claim of severe financial constraints.” 

Id. at 742. “On appeal, the Housing Authority of­
fer [ed] little evidence to attack these findings[,]” and



the Eighth Circuit concluded that they “were not 
clearly erroneous.” Id.

Conversely, in Darst-Webbe Tenants Association 
Board u. St. Louis Housing Authority, decided the 
same year as Charleston Housing Authority, the 
Eighth Circuit concluded that the plaintiff tenant 
associations failed to meet their burden at the third 
stage. Darst-Webbe, 417 F.3d at 906. The Eighth 
Circuit assumed that the tenant associations made 
out a prima facie case with evidence that St. Louis’s 
revitalization plan for a public housing facility 
greatly reduced the number of low-income housing 
units available, especially units with sufficient bed­
rooms for families with children. Id. at 902. None­
theless, at the second stage of the burden-shifting 
test, the Eighth Circuit determined that the plan 
furthered the defendants’ legitimate, non- 
discriminatory objectives—namely, strengthening 
homeownership, improving resident services, reduc­
ing the concentration of low-income housing, and 
creating a sustainable mixed-income community. Id. 
At the third stage, the Eighth Circuit affirmed the 
district court’s conclusion that the plaintiffs’ pro­
posed alternative, which called for construction of 
more and larger affordable units as part of the rede­
velopment plan, was not supported by reliable expert 
testimony demonstrating its marketability. Id. at 
905.

As in Darst-Webbe, the key question at issue in 
this case is whether plaintiffs satisfied the less dis­
criminatory alternative stage of the burden-shifting 
framework. As the case comes to this Court, the re­
cord on this issue has not been fully developed, but 
the Third Circuit’s judgment was assuredly correct

24



25

that Respondents should be allowed to make their 
case. Viewing the record in the light most favorable 
to Respondents, there are genuine issues of material 
fact that preclude summary judgment in favor of the 
Township on the issue of whether it could have ac­
complished its goal of reducing blight in the Mount 
Holly Gardens neighborhood “in a far less heavy- 
handed manner.” Pet. App. 25a-26a.
III. The canon of constitutional avoidance is

inapplicable.
As Respondents explain, the FHA’s text, struc­

ture, and legislative history authorize disparate- 
impact claims. See Resp. Br. 17-35. Should the 
Court find the statute ambiguous, however, the 
canon of constitutional avoidance is inapplicable, 
notwithstanding the contrary arguments of the 
Township and its amici. See, e.g., Pet. Br. 39-42; Ju­
dicial Watch Amicus Br. 10-12; Project on Fair Rep­
resentation Amicus Br. 8; Pac. Legal Found. Amicus 
Br. 26-27.

Under this canon, the Court strives “to construe 
the statute to avoid [constitutional] problems if it is 
fairly possible to do so.” Boumediene v. Bush, 553 
U.S. 723, 787 (2008) (internal citations and quota­
tion marks omitted). But this canon is applicable 
only where there are “grave” constitutional concerns. 
Rust v. Sullivan, 500 U.S. 173, 191 (1991) (citation 
omitted). There are no such grave constitutional 
concerns here that trump deference to the consistent 
and long-standing determination of the courts of ap­
peals and HUD, as confirmed in its recently promul­
gated rule, that the disparate-impact framework ad­
vances the FHA’s core purposes.



26

A. Most FHA remedies do not trigger strict 
scrutiny.

The Township’s invocation of the canon of consti­
tutional avoidance is premised on the deeply flawed 
notion that application of disparate-impact to rede­
velopment plans would “necessarily” and “affirma­
tively require [local government actors] to ‘classify 
individuals by race and allocate benefits and bur­
dens on that basis,”’ Pet. Br. 39-40 (quoting Parents 
Involved, 551 U.S. at 783 (Kennedy, J., concurring in 
part and concurring in the judgment)), and therefore 
compel “local policymakers to engage in racial bal­
ancing in every redevelopment choice.” Id. at 44. 
Nothing could be further from the truth.

First, the Township’s concerns about “racial bal­
ancing” are overwrought. Municipal governments 
are surely cognizant of this Court’s holdings that 
“outright racial balancing,” for its own sake, is “pat­
ently unconstitutional.” Grutter v. Bollinger, 539 
U.S. 306, 330 (2003).

Second, there are many options for government 
officials to avoid or redress disparate-impact liability 
that do not trigger strict scrutiny, as the Township 
effectively concedes. Pet. Br. 39. For instance, when 
government officials utilize “mechanisms [that] are 
race conscious but do not lead to different treatment 
based on a classification that tells each [individual] 
he or she is to be defined by race, . . .  it is unlikely 
any of [these mechanisms] would demand strict 
scrutiny to be found permissible.” Parents Involved, 
551 U.S. at 789 (Kennedy, J., concurring in part and 
concurring in the judgment). In the school context, 
these mechanisms might include “strategic site se­



27

lection of new schools; drawing attendance zones 
with general recognition of the demographics of 
neighborhoods; allocating resources for special pro­
grams; recruiting students and faculty in a targeted 
fashion; and tracking enrollments, performance, and 
other statistics by race.” Id.; cf. Ricci v. DeStefano, 
557 U.S. 557, 585 (2009) (declining to “question an 
employer’s affirmative efforts to ensure that all 
groups have a fair opportunity to apply for promo­
tions and to participate in the process by which pro­
motions will be made”). Similarly, when locating re­
placement housing or making other redevelopment 
decisions, local governments should be able to factor 
the demographics of targeted neighborhoods without 
triggering strict scrutiny; as in the context of school 
attendance zones, the result would be a policy that 
benefits the neighborhood as whole, rather than only 
residents of a particular race. Cf. United States v. 
Yonkers Bd. of Educ., 837 F.2d 1181, 1184, 1236 (2d 
Cir. 1987) (upholding order to build 200 public hous­
ing units in areas that were predominantly non­
minority to further racial integration); Rizzo, 564 
F.2d at 153 (affirming order requiring construction 
of a low-income housing project in a predominantly 
white neighborhood to redress disparate-impact and 
intentional violations).

Third, even in the context of court-approved set­
tlements and court-ordered remedies for FF1A dispa- 
rate-impact claims, most relief is facially race- 
neutral insofar as it benefits all individuals, and not 
just the disparately impacted racial minorities who



28

were subjected to the challenged policy. This is es­
pecially true in the redevelopment context.4

Nor, as Respondents point out, Resp. Br. 51, and 
notwithstanding the Township’s contention to the 
contrary, Pet. Br. 39, would a remedy in this case re­
quire the allocation of benefits or burdens based on 
individual racial classifications. For instance, pro­
viding additional relocation assistance for all indi­
viduals displaced by a redevelopment project, such 
as the one at issue here, would benefit minority and 
nonminority residents alike. Indeed, the less dis­
criminatory alternative proposed by Respondents’ 
planning expert was facially race-neutral. The ex­
pert advocated an “alternate redevelopment plan 
that would rely on the targeted acquisition and re­
habilitation of some of the existing Gardens homes,” 
rather than “the wholesale destruction and rebuild­

4 See, e.g., Huntington Branch, 844 F.2d at 941-42 (ordering 
defendants to eliminate a zoning ordinance that restricted 
multi-family housing to an already segregated “urban renewal 
zone”); Consent Decree, United States v. City of Pooler, No. 
4:01-263 (S.D. Ga. June 16, 2003) (requiring a city to construct 
68 low-income units and to advertise and fill them on a non- 
discriminatory basis); Consent Decree, United States v. Jack­
sonville Housing Authority, No. 3:00-1165-J-25A (M.D. Fla. Oct. 
18, 2000) (requiring a city to replace demolished public housing 
with new buildings restricted to certain census tracts and ac­
cessible via public transportation, and to develop a Section 8 
mobility counseling program); see also Brown v. Artery Organi­
zation, Inc., No. 86-3285, 1987 WL 16846, at *2-3 (D.D.C. Sep. 
1, 1987) (preliminarily approving a settlement requiring defen­
dants to maintain a certain number of low-income units and 
reopen a wait list to receive Section 8 voucher holders); Fox, 
468 F. Supp. at 911 (approving a settlement requiring construc­
tion or rehabilitation of affordable housing).



29

ing of the neighborhood.” Pet. App. 25a-26a; Resp. 
Br. 13.

B. Any racial classifications utilized to rem­
edy particular instances of disparate- 
impact discrimination can be addressed 
by case-specific application of strict 
scrutiny.

Even if remedies for disparate-impact discrimina­
tion may allocate benefits or burdens based on indi­
viduals’ race, that mere possibility should not auto­
matically trigger any “grave” constitutional concerns 
with the overall statutory disparate-impact frame­
work. Rust, 500 U.S. at 191. As the Township con­
cedes, Pet. Br. 40, there is a well-established strict 
scrutiny standard for evaluating the constitutional­
ity of racial classifications on a case-by-case, context- 
specific basis.

While such rigorous constitutional review would 
apply to a racial classification that is part of a rem­
edy for a government actor’s disparate-impact dis­
crimination under the FHA (or any other federal 
civil rights statute that permits such claims), it 
would not as the Township contends, Pet. Br. 40, 
“face serious difficulty in satisfying” either the “com­
pelling interest” or the “narrow tailoring” prong of 
strict scrutiny.

1. Compelling Interest. This Court has in­
variably presumed that compliance with presump­
tively valid federal antidiscrimination law is a com­
pelling interest. See, e.g., Bush v. Vera, 517 U.S. 
952, 977 (1996); Shaw v. Hunt, 517 U.S. 899, 915 
(1996); Shaw v. Reno, 509 U.S. 630, 656 (1993). The 
presumption should apply here. This Court has re­



30

peatedly endorsed disparate-impact analysis, with­
out ever questioning its constitutionality. See, e.g., 
Lewis, 130 S. Ct. at 2197-98: Watson, 487 U.S. at 
986-87; Griggs, 401 U.S. at 431.

There are two complementary goals of the FHA’s 
prohibition against disparate-impact discrimination. 
Neither triggers constitutional concerns.

First, disparate impact furthers the FHA’s goals 
by rooting out subtle or surreptitious intentional dis­
crimination, as discussed in Part II.B supra. It is 
widely accepted that evidence of disproportionate 
burden will usually “provide an important starting 
point” in the constitutional equal protection inquiry. 
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 
429 U.S. 252, 266 (1977). Moreover, as this Court 
has recognized in other contexts, severe disparate 
impact may constitute probative evidence of dis­
criminatory intent. See, e.g., Teamsters, 431 U.S. at 
339-40 & n.20 (1977); Arlington Heights, 429 U.S. at 
266.

Through the three-part burden-shifting frame­
work discussed above, the disparate-impact standard 
provides a powerful evidentiary tool—by countering, 
in an orderly and sensible fashion, explanations for 
policies or practices that have a demonstrably ad­
verse impact. Cf. Albemarle Paper Co. v. Moody, 422 
U.S. 405, 422, 425-36 (1975) (explaining disparate 
impact in Title VII context); In re Emp’t Discrimina­
tion Litig. Against Ala., 198 F.3d 1305, 1321 (11th 
Cir. 1999) (same). Even “ [t]hough the plaintiff is 
never explicitly required to demonstrate discrimina­
tory motive, a genuine finding of disparate impact 
can be highly probative of the [defendant’s motive



31

since a racial ‘imbalance is often a telltale sign of 
purposeful discrimination.”’ Id. (quoting Teamsters, 
431 U.S. at 339-40 n.20).

Thus, the reasonable operation of the burden- 
shifting framework renders “an affirmative defense 
for good-faith” unnecessary to assuage any equal 
protection concerns raised by disparate-impact en­
forcement. Cf. Resp. Br. 53; Ricci, 557 U.S. at 595 
(Scalia, J., concurring). Rebuffing a constitutional 
challenge to Title VII’s prohibition against disparate- 
impact discrimination in the workplace, the Elev­
enth Circuit reasoned: “If, after a prima facie dem­
onstration of discriminatory impact, the employer 
cannot demonstrate that the challenged practice is a 
job related business necessity, what explanation can 
there be for the employer’s continued use of the dis­
criminatory practice other than that some invidious 
practice is probably at work?” In re Emp’t Discrimi­
nation Litig. Against Ala., 198 F.3d at 1321-22. Evi­
dence offered at the third stage of the burden- 
shifting framework may also be probative of dis­
criminatory intent: “In the context of the plaintiffs 
further option of demonstrating an alternative prac­
tice that has less discriminatory impact, the Su­
preme Court has been even more unambiguous in 
characterizing an employer’s refusal to adopt the al­
ternative practice as ‘evidence that the employer was 
using its tests merely as a “pretext” for discrimina­
tion.’” Id. at 1322 (quoting Albemarle Paper, 422 
U.S. at 425). Accordingly, a finding of disparate- 
impact discrimination may be tantamount to evi­



32

dence of clandestine intentional discrimination.5
Of course, not every practice with an unlawful 

disparate impact is actually motivated by intentional 
discrimination. Instead, the Court has recognized 
that “ [legislation which deters or remedies constitu­
tional violations can fall within the sweep of Con­
gress’ enforcement power even if in the process it 
prohibits conduct which is not itself unconstitu­
tional.” City o f Boerne v. Flores, 521 U.S. 507, 518 
(1997). Using that rationale, this Court has en­
dorsed “prophylactic legislation” prohibiting dispa­
rate-impact discrimination in order to enforce the 
Fourteenth Amendment’s equal protection guaran­
tee. Tennessee u. Lane, 541 U.S. 509, 520 (2004) 
(“When Congress seeks to remedy or prevent uncon­
stitutional discrimination, § 5 [of the Fourteenth 
Amendment] authorizes it to enact prophylactic leg­
islation proscribing practices that are discriminatory 
in effect, if not in intent, to carry out the basic objec­
tives of the Equal Protection Clause.”); see also Nev. 
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 737-38 
(2003).

Notably, this Court’s cases recognizing Congres­
sional intent to prohibit disparate-impact discrimi­
nation under Title VII do not justify disparate- 
impact merely as an evidentiary dragnet; instead, 
the Court has recognized that disparate-impact en­
forcement also operates as a broader “prophylactic”

5 In addition, “even if one assumed that [intentional] dis­
crimination can be adequately policed through disparate 
treatment analysis, the problem of subconscious stereotypes 
and prejudices would remain.” Watson, 487 U.S. at 990.



33

measure to further Congress’s goal “of achieving 
equality of employment ‘opportunities’ and removing 
‘barriers’ to such equality.” Connecticut v. Teal, 457 
U.S. 440, 449 (1982) (quoting Griggs, 401 U.S. at 
429-30); see also Albemarle Paper, 422 U.S. at 417 
(same).

This brings us to the second and equally impor­
tant goal of the FHA disparate-impact framework: 
It eliminates—through the same burden-shifting 
framework—practices that may be neutral on their 
face, but nevertheless perpetuate racial discrimina­
tion without any legitimate justification. See Wat­
son, 487 U.S. at 987 (“ [T]he necessary premise of the 
disparate-impact approach is that some employment 
practices, adopted without a deliberately discrimina­
tory motive, may in operation be functionally equiva­
lent to intentional discrimination.”); Huntington 
Branch, 844 F.2d at 935 (“Often [facially race- 
neutral] rules bear no relation to discrimination 
upon passage, but develop into powerful discrimina­
tory mechanisms when applied.”).

There is no question that when Congress enacted 
the FHA in 1968 and amended it in 1988, it had be­
fore it a record filled with evidence that the legacy of 
persistent segregation and racial discrimination by 
both public and private actors still affected housing 
opportunities. See, e.g., 114 Cong. Rec. 2277 (Feb. 6, 
1968) (Sen. Mondale) (“An important factor contrib­
uting to exclusion of Negroes from [suburban com­
munities and other exclusively white areas], more­
over, has been the policies and practices of agencies 
of government at all levels.”); 134 Cong. Rec. 10454 
(Aug. 1, 1988) (Sen. Kennedy) (“Housing discrimina­
tion exists in America today, and it exists in epi­



34

demic proportions.”)- And, as highlighted in the in­
troduction to this amicus brief, the recent economic 
crisis has exposed predatory housing policies that 
continue to deny housing opportunities to African 
Americans and to isolate African-American commu­
nities.6

Disparate-impact enforcement reflects a concern 
that the disadvantages faced by “minority citizens, 
resulting from forces beyond their control, not be al­
lowed to work a cumulative and invidious burden on 
such citizens for the remainder of their lives.” 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806 
(1973) (citing Griggs, 401 U.S. at 430). To a sub­
stantial and unfortunate degree, such disadvantages 
are the result of prior unconstitutional state action, 
and the case law is abundantly clear that govern­
ment officials have both the constitutional authority 
and the responsibility to assure that the legacy and 
vestiges of those discriminatory practices are not 
given any more effect than legitimately necessary. 
See, e.g., City of Richmond v. J.A. Croson, 488 U.S. 
469, 532-33 (1989). Moreover, the removal of such 
barriers instills greater community confidence in the

6 This second rationale for disparate-impact enforcement as 
providing a means to redress facially neutral practices that 
“freeze” in place a discriminatory “status quo,” Griggs, 401 U.S. 
at 430, is consistent with, although ultimately broader than, 
the “segregation” prong of HUD’s disparate-impact rule. See 24 
C.F.R. § 100.500(a) (“A practice has a discriminatory effect 
where it actually or predictably results in a disparate impact on 
a group of persons or creates, increases, reinforces, or perpetu­
ates segregated housing patterns.” (emphasis added)); see 78 
Fed. Red. at 11,463; Graoch Assocs., 508 F.3d at 378; Hunting- 
ton Branch, 844 F.2d at 937.



35

fairness of public housing policies, and as a conse­
quence, the legitimacy of the government itself. Cf. 
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290
(1986) (O’Connor, J., concurring).

2. N arrow  Tailoring. Because disparate- 
impact discrimination is a presumptively valid tool 
to effectuate the FHA’s goals and, thus, satisfies the 
“compelling interest” prong of strict scrutiny, any 
lingering concerns about the constitutionality of a 
specific race-conscious remedy or voluntary compli­
ance effort implemented by a government actor 
should be addressed as a matter of narrow tailoring 
review in the particular circumstances at issue. 
Some of the Township’s amici, see, e.g., Project on 
Fair Representation Amicus Br. 3; Pac. Legal Found. 
Amicis Br. 23, 26, focus on Justice Scalia’s concur­
rence in Ricci, where he speculated about potential 
tension between disparate impact and disparate 
treatment. Ricci, 557 U.S. at 594 (Scalia, J., concur­
ring). Yet the narrow-tailoring prong of strict scru­
tiny already builds in a framework that fully and 
adequately addresses any possible tension based on 
the facts of a specific case. See Croson, 488 U.S. at 
500; United States v. Paradise, 480 U.S. 149, 171
(1987) ; Wygant, 476 U.S. at 277 (plurality opinion).

Courts have adeptly applied narrow-tailoring in 
those instances where racial classifications in the 
housing context have been challenged. Compare 
United States v. Starrett City Assocs., 840 F.2d 1096, 
1103 (2d Cir. 1988) (striking down tenant selection 
procedure that utilized “rigid racial quotas of indefi­
nite duration to maintain a fixed level of integra­
tion”), with Jaimes v. Lucas Metro. Hous. Author., 
833 F.2d 1203, 1206-07 (6th Cir. 1987) (upholding a



36

tenant selection plan for a municipal housing com­
plex, which classified applicants based on their 
race).7

Thus, FHA disparate-impact enforcement pre­
sents no significant constitutional concerns as a gen­
eral matter, and any specific remedies that involve 
racial classifications in the allocation of individual 
relief provided by government actors—unlike the 
less discriminatory alternatives proposed in this 
case—can be addressed through well-established 
mechanisms of judicial review.

7 In comparison, efforts to combat discrimination in em­
ployment are more likely than those in the FHA context to re­
sult in remedies that may be perceived as a “zero-sum” game, 
providing limited resources (e.g., jobs, promotions) to certain 
individuals as opposed to others. In many cases, these “zero- 
sum” perceptions are inconsistent with the realities of work­
place operations. Cf. Noah D. Zatz, Beyond the Zero-Sum 
Game: Toward Title VII Protection for Intergroup Solidarity, 77 
Ind. L.J. 63, 133-35 (2002). Regardless of whether these per­
ceptions are accurate, however, strict scrutiny provides a 
means of rigorous case-specific review in the Title VII context 
as well, and therefore a wholesale constitutional repudiation is 
entirely unwarranted.



37

CONCLUSION
For the foregoing reasons, this Court should af­

firm the judgment of the Third Circuit.
Respectfully submitted,
S h e r r il y n  Ifil l  

Director- Counsel 
C h r is t in a  Sw a r n s  
R eN ik a  C. M o o r e  
V e r o n ic a  J o ic e  
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  F u n d , In c . 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200

J o s h u a  C iv in  
Counsel of Record 

J o h n a t h a n  Sm it h  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
1444 I St., NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300 
jcivin@naacpldf.org

Counsel for Amicus Curiae

October 28, 2013

mailto:jcivin@naacpldf.org