Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Brief Amicus Curiae

    No. 13-1371

In  T he

Supreme Court of tfje Mmteb States

T e x a s  D e p a r t m e n t  o f  H o u sin g  a n d  
C o m m u n it y  A f f a ir s , e t a l .,

Petitioners,
v.

T h e  In c l u s iv e  C o m m u n it ie s  P r o je c t , In c .,
Respondents.

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

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

IN SUPPORT OF RESPONDENTS

Sh errilyn  Ifill 
Director-Counsel 

Janai Nelson  
Christina  Swarns 
J in  H ee Lee 
Rach el  M. Kleinm an  
NAACP Legal  Defense  & 

E ducational  Fu n d , In c . 
40 Rector Street,

5th floor
New York, NY 10006

Leslie  M. Proll 
Jo h n  Pa u l  Sch napper - 

Casteras *
NAACP Legal  D efense  & 

E ducational  Fu n d , In c . 
1444 I Street NW 
Washington, DC 20005 
202-682-1300 
j schnapper@naacpldf. or g

* Counsel of Record



TABLE OF CONTENTS

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

ARGUMENT.................................................... .......2
ARGUMENT................................... ...... ......... .......... ..6
I. PERSISTENT HOUSING SEGREGATION 

CONSTRAINS INDIVIDUAL ECONOMIC 
POTENTIAL, DISTORTS MARKET 
DYNAMICS, AND JUSTIFIES ONGOING 
DISPARATE IMPACT ENFORCEMENT...........6

A. Issues of dignity and morality 
resulting from entrenched and 
deliberate residential segregation 
undergirded passage of the FHA........6

B. Housing segregation imposes a
wide array of socioeconomic harms 
that can only be fully eliminated 
through a framework that 
includes a disparate impact 
standard........................... ....... ...... . 10

C. Residential segregation distorts
market dynamics and degrades 
individual liberty and dignity...........14

II. THE DISPARATE IMPACT STANDARD IS 
WORKABLE, FAIR, AND EFFECTIVE AT 
ROOTING OUT UNJUSTIFIED BAR­
RIERS TO HOUSING OPPORTUNITY.........17

A. The threshold showing required 
at the prima facie stage



11

adequately polices the boundaries 
of disparate impact............................18

B. After a prima facie case is 
established, liability attaches only 
if the defendant fails to justify its 
policy or if its legitimate objective 
can be achieved by some other less 
discriminatory means........................21

III. THE CANON OF CONSTITUTIONAL 
AVOIDANCE IS INAPPLICABLE TO 
DISPARATE IMPACT CLAIMS UNDER 
THE FHA............................................... ............ 24

A. Most FHA remedies do not trigger
strict scrutiny.  ...... ......... ....24

B. Racial classifications used to rem­
edy disparate impact discrim­
ination will be subject to a case-
specific strict scrutiny analysis.... ....27
1. Demonstrating a “compel­

ling interest” under strict 
scrutiny analysis..   ....27

2. Demonstrating “narrow
tailoring” under strict 
scrutiny analysis .........31

CONCLUSION



I l l

TABLE OF AUTHORITIES 
Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975)...,.......... ........ ...... ......................... -.......-.28, 30

Boumediene v. Bush, 553 U.S. 723 (2008)................ 24
Brown v. Artery Organization, Inc., 654 F. Supp,

1106 (D.D.C. 1987)......................... ......... .......... . 1
Brown v. Plata, 131 S.Ct. 1910 (2011).......................17
Bush v. Vera, 517 U.S. 952 (1996).................. 27
Central Alabama Fair Housing Center v. Powder 

Realty Co., 236 F.3d 629 (11th Cir. 2000)..... . 1
City of Boerne v. Flores, 521 U.S. 507 (1997)......... ..29
City of Richmond v. J.A. Croson, 488 U.S. 469 

(1989)................................................................... .30, 31
Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) .......... . 1
Connecticut v. Teal, 457 U.S. 440 (1982)..................30
Darst-Webbe Tenant Association Board v.

St. Louis Housing Authority,
417 F.3d 898 (8th Cir. 2005).............................. .....23

Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91 
(1979).................................................................... 10, 11

Graoch Assocs. #33, L.P. v. Louisville/Jefferson 
County Metropolitan Human Relations 
Commission, 508 F. 3d 366
(6th Cir. 2007)........ ......... ....................... . 22, 23, 31

Griggs v. Duke Power Co., 401 U.S. 424
(1971)............. ........................................... passim

Grutter v. Bollinger, 539 U.S. 306 (2003)................. 25



IV

Hall v. Florida, 134 S.Ct. 1986 (2014).......... . 17
Hallmark Developers, Inc. v. Fulton County.,

466 F.3d 1276 (11th Cir, 2006).........................19-20
Huntington Branch, NAACP v. Town of Huntington, 

844 F,2d 926 (2d. Cir. 1988)..... ...................... . 17, 31
In re Employment Discrimination Litigation 

Against Alabama, 198 F,3d 1305 
(11th Cir. 1999).................................... ...............28, 29

International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977).............................. 19, 28

Jaimes v. Lucas Metro. Hous. Auth., 833 F.2d 1203 
(6th Cir. 1987)............ ........ ........ ......... ....... . 32

Keith v. Volpe, 858 F,2d 467 (9th Cir. 1988)....... .....20
Kennedy Park Homes Association, Inc. v. City of 

Lackawanna, 436 F,2d 108 (2d Cir. 1970)...............1
Langlois v. Abington Housing Authority, 234 F.

Supp. 2d 33 (D. Mass. 2002) .................. 22
Lawrence v. Texas, 539 U.S. 558 (2003)........... . 17
Lewis v. City of Chicago, 560 U.S. 205

(2010)..................... .......... ..............................2, 18, 27
Magner v. Gallagher, 132 S. Ct. 1306 (2013)............18

McCauley v. City of Jacksonville, 739 F. Supp. 278 
(E.D.N.C. 1989)......................................................20

McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973).................... ...................... ................... 30

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

Secretary of Housing and Urban
Development., 56 F,3d 1243 (10th Cir. 1995)........21



V

NAACP v. American Family Mutual Insurance Co., 
978 F.2d 287 (7th Cir. 1992),..............,..,................ 1

Nevada Department of Human Resources v. Hibbs,
538 U.S. 721 (2003)...... .......................... .................29

Parents Involved in Community Schools v.
Seattle School District No. 1,
551 U.S, 701 (2007)..... . 12, 16, 25

Planned Parenthood v. Casey, 505 U.S. 833
(1992)...................................................................... 17

Resident Advisory Board v. Rizzo, 564 F.2d 126
(3rd Cir. 1977)................................................... . 20, 26

Ricci v. DeStefano, 557 U.S. 557 (2009)........25, 29, 31
Roper v. Simmons, 543 U.S. 551 (2005)............... 17
Rust v. Sullivan, 500 U.S. 173 (1991)..................24, 27
Shaw v. Hunt, 517 U.S. 899 (1996)......... ........ .........27
Shaw v. Reno, 509 U.S. 630 (1993) ..... 27
Shelley v. Kraemer, 334 U.S. 1 (1948)..................... 1, 9
Smith v. City of Jackson, 544 U.S. 228 (2005),...... ....4
Tennessee v. Lane, 541 U.S. 509 (2004)....................29
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)................. .......... .......... ........... ..18

Twp. of Mount Holly v. Mount Holly Gardens 
Citizens in Action, 133 S. Ct. 2824 (2013)............  18

Tsombanidis v. West Haven Fire Department, 352 
F.3d 565 (2d Cir. 2003).......................................... 20



VI

United States v, Heirs of Boisdore, 49 U.S. (8 How.) 
113 (1850)...... .................................. ........................... 6

United States v. Paradise, 480 U.S. 149 (1987)........ 31
United States v. Starrett City Assocs.,

840 F.2d 1096 (2d Cir. 1988) ..................... . 31
United States v. Windsor, 133 S.Ct. 2675 (2013)...... 17
United States v, Yonkers Board of Education,

837 F.2d 1181 (2d Cir. 1987) ...............................2, 26
Village of Arlington Heights v. Metropolitan 

Housing Development Corp.,
429 U.S. 252 (1977) ........................ ................... .......28

Watson v. Fort Worth Bank & Trust, 487
U.S. 977 (1988)......................................... 19, 28, 29

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) .............................................30, 31

Court Filings and Docketed Cases

Consent Decree, Byrd v. First Real Estate Corp, of 
Alabama, No. 95-CV-3087
(N.D. Ala. May 14, 1998) ......................... .................. 1

Congressional Materials

114 Cong. Rec. 2277 (1968).............. ..................... . 9

134 Cong. Rec. 10454 (1988) ........ ................................9

Federal Rules and Regulations

24 C.F.R. § 100.500(a) ............................................ ......30



24 C.F.R. § 100.500(b)(2).,,,............................ .23
24 C.F.R. § 100.500(c)(2).................. .....................21, 22
24 C.F.R. § 100.500(c)(3).................. ...... ........ 21, 22, 23
24 C.F.R. § 100.500(c)(1)...............................................20
24 C.F.R. § 100.500c(l)..................... .......................... . 19
U.S. Dep’t of Hous. & Urban Dev., Implementation of 

the Fair Housing Act’s Discriminatory Effects 
Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2003) 
(codified at 24 C.F.R. part 100) .................... . passim

Other Authorities
Bruce Ackerman, We The People, Volume 3: The 

Civil Rights Revolution (2013).................... ............. 8
Elizabeth Anderson, The Imperative of Integration 

(2010).................... .................................................... .11
The Geography of Opportunity: Race and Housing 

Choice in Metropolitan America (Xavier de Souza 
Briggs, ed., 2005).............................. ..................... ..14

Kyle Crowder et al., Neighborhood Diversity, 
Metropolitan Constraints, and Household 
Migration, Am. Soc. Rev. 77(3) (2012)................... 16

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    ................................. 18

William Frey, The New Metro Minority Map:
Regional Shifts in Hispanics, Asians, and Blacks 
from Census 2010, Brookings Institution,
Aug. 2011................................ ...................................... 10

vii

http://www.justice.gov/crt/about/cor/coord


V l l l

Milton Friedman, Capitalism and Freedom (40th 
anniversary ed., 2002)....... ...... . 15

Arnold C. Harberger, Microeconomics, in 
The Concise Encyclopedia of
Economics (2nd ed. 2008)...................... . 15

President Lyndon B. Johnson, Remarks at a 
Reception for Members of the American Society 
of Newspaper Editors (1964)..................... .......... . 8

Dr. Martin Luther King, Jr., A Statement by Dr.
King (1966)......................... .......... ........................ . 7

Dr. Martin Luther King, Jr., His Influence 
Speaks to World Conscience, New Delhi,
India (1958)...................................................................8

Dr. Martin Luther King, Jr. I Have a
Dream (1963)..............       8

Dr. Martin Luther King, Jr., Letter from a
Birmingham Jail (1963).............   8

Dr. Martin Luther King, Jr., Speech Before the 
Southern Christian Leadership Conference, 
Atlanta, Georgia (1967) .............     ....8

Dr. Martin Luther King, Jr., The Other America 
(1968)...............................     .....8

Charles M. Lamb, Housing Segregation in Suburban 
America since 1960: Presidential and Judicial 
Politics (2005)...........     8

Huiping Li et al., Residential Segregation, Spatial 
Mismatch and Economic Growth across U.S. 
Metropolitan Areas, 50 Urban Stud. (2013).......   12

John Logan, Separate and Unequal: The
Neighborhood Gap for Blacks, Hispanics and



IX

Asians in Metropolitan America,
US2010 Project, July 2011.................................... . 9

Jens Ludwig et al., Neighborhoods, Obesity, and 
Diabetes -  A Randomized Social Experiment,
365 New Eng. J. Med. 1509 (2011)...................... . 12

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

NAACP Legal Defense and Educ. Fund, Inc. et al.,
The Future of Fair Housing: Report on the National 
Commission of Fair Housing and Equal 
Opportunity (Dec. 2008).............. .......... ........... . 1-2

Haya El Nasser, Census data show ‘surprising’ 
segregation, USA Today, Dec. 20, 2010................... 9

Mary Pattillo, Making Fair (Public) Housing Claims 
in a Post-Racism Legal Context, 18 J. Affordable 
Hous. & Cmty Dev. L. 215 (2009).................. 147, 15

In Pursuit of a Dream Deferred: Linking Housing 
and Education Policy (John a. powell et al., eds. 
2001) ...................... ............................. ......... ................. . 11

Richard Rothstein, The Making of Ferguson Public 
Policies at the Root of its Troubles, Econ. Pol’y 
Inst. (2014). .......... ........ .......................................... ....7

Richard Rothstein, Race and public housing: 
Revisiting the federal role, Poverty & Race 
Vol. 21, No. 6 (2012)............ ......................................7

Richard Rothstein, Segregated, Housing,
Segregated Schools, Education Week (2014).... . 11

Stacy E. Seicshnaydre, Is Disparate Impact Having 
Any Impact ? An Appellate Analysis of Forty Years



X

of Disparate Impact Claims Under the Fair 
Housing Act, Am. U, L. Rev. 63, no. 2,
357, 364 (2013) ........ ........................... ........ . 13, 20, 21

Thomas Shapiro et al., The Roots of the Widening 
Racial Wealth Gap: Explaining the Black- 
White Economic Divide (2013)............................... 14

Patrick Sharkey, Stuck in Place: Urban 
Neighborhoods and the End of Progress 
Toward Racial Equality (2013)....................... 14, 16

Richard Fry and Paul Taylor, The Rise of 
Residential Segregation by Income, Pew 
Research Center, Aug. 2012. ................................. 11

Margery Austin Turner & Lynette A. Rawlings, 
Promoting Neighborhood Diversity: Benefits, 
Barriers, and Strategies, The Urban Institute,
Aug. 2009................ ........ ......... ........ . 10

U.S. Census Bureau News, Residential 
Vacancies and Homeownership in the 
Third Quarter 2014................................................ 14

U.S. Census Bureau, Housing and Household
Economic Statistics Division (2011)................. 10

United States Catholic Conference, Pastoral 
Constitution on the Church in the Modern 
World (1965)............................................................. 8

E. Roy Weintraub, Neoclassical Economics, 
in The Concise Encyclopedia of Economics 
(1st ed. 1993)    15

David R. Williams & Chiquita Collins, Racial 
residential segregation: a fundamental cause of 
racial disparities in health, 116 Pub. Health 
Rep. (2001)............................... .................................12



INTEREST OF AMICUS'
The NAACP Legal Defense & Educational Fund, Inc. 

(LDF) is a non-profit legal organization that, for more 
than seven decades, has helped African Americans 
secure their civil and constitutional rights. 
Throughout its history, LDF has challenged public and 
private policies and practices that deny African 
Americans opportunities and choices in housing and 
isolate African-American communities. See, e.g,, 
McGhee v. 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. 
Louoder Realty Co., 236 F.3d 629 (11th Cir. 2000) 
(racial steering); Comer v. Cisneros, 37 F.3d 775 (2d 
Cir. 1994) (racial discrimination in public housing and 
assistance programs); NAACP v. Am. Family Mut. Ins. 
Co., 978 F.2d 287 (7th Cir. 1992) (redlining); Kennedy 
Park Homes Ass’n, Inc. v. City of Lackawanna, 436 
F.2d 108 (2d Cir. 1970) (exclusionary zoning); 
Thompson v. U.S. Dept of Hous. & Urb. Dev., No. 95- 
309, 2006 WL 581260 (D. Md. Jan. 10, 2006) (federal 
government’s obligation to further fair housing 
affirmatively); Consent Decree, Byrd v. First Real 
Estate Corp. of Ala., No. 95-CV-3087 (N.D. Ala. May 
14, 1998) (racial steering); Brown v. Artery Org., Inc., 
654 F. Supp. 1106 (D.D.C. 1987) (redevelopment plans 
that unfairly eliminate affordable housing); see also 
NAACP Legal Defense and Educ. Fund, Inc. et al., The

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

Future o f Fair Housing: Report on the National 
Commission of Fair Housing and Equal Opportunity 
(Dec. 2008). LDF has also long played an instrumental 
role in advancing the doctrine of disparate impact 
discrimination before this Court. See, e.g., Lewis u. 
City of Chicago, 560 U.S. 205 (2010); Griggs v. Duke 
Power Co., 401 U.S. 424 (1971).

INTRODUCTION AND 
SUMMARY OF THE ARGUMENT

For the third time in as many years, this Court faces 
the question of whether disparate impact claims are 
cognizable under the Fair Housing Act (FHA). The 
Court has received thorough briefing from the parties 
and the Solicitor General on statutory interpretation, 
and from a range of amici on the Congressional and 
historical record. In light of its long experience in the 
field of civil rights, LDF writes separately to highlight 
three unique points.

First, the framers of the Fair Housing Act were 
deeply conscious of the broader consequences of 
residential segregation and the host of interconnected 
harms that it imposes on society. Although the 
considerable progress this nation has made toward 
racial equality, including the passage and enforcement 
of the FHA, might suggest that housing segregation is 
a relic of the past, the unfortunate reality is that it is 
not. It is no coincidence that, in far too many instances, 
neighborhoods that were purposely zoned or 
subsidized for only African Americans or only whites 
several decades ago remain similarly racially 
identifiable today. The Fair Housing Act demands that 
we remain conscious of the long-term effects of 
historical patterns of housing segregation.



3

Long-term residential segregation has grave 
consequences for the lives and livelihoods of millions 
of African Americans. Individuals who reside in 
neighborhoods characterized by entrenched housing 
segregation face dimmer economic prospects, lower 
property values, truncated social and professional 
interactions, and inferior schools, because of the direct 
link between these factors and where one resides. 
These interrelated harms serve to demean the 
individuals who are forced to endure them and 
severely curtail the self-determination and upward 
mobility of both individuals and communities. 
Altogether, the enduring effects of de jure segregation 
continue to constrain economic liberty, distort market 
dynamics, and impose broad societal harms.

Second, the disparate impact framework that 
evolved out of the FHA has proven to be as 
administrable and fair as its counterparts in the 
contexts of Title VII of the Civil Rights Act, and the 
Age Discrimination Employment Act (ADEA). The 
framework, now codified in a final regulation by the 
U.S. Department of Housing and Urban Development 
(HUD), guards against specious claims by requiring a 
plaintiff to make a significant threshold showing of 
discriminatory effects. Moreover, liability only 
attaches if a defendant is unable to justify its policy or 
if its legitimate objective can be achieved by some 
other less discriminatory means. Because courts have 
proven to be fully adept at administering this burden- 
shifting framework in the housing context, it is 
bewildering that amici in support of Petitioners 
suggest that this framework wreaks havoc on business 
practices. Contrary to their suggestion, the sky has not 
fallen in the four decades during which the disparate 
impact framework has been employed by courts and 
applied to businesses. Instead, businesses have been



4

able to comfortably adapt to the standard and create 
policies and practices that comport with Congress’ 
intent without detrimentally affecting sound business 
practices. The fact that some industries argue that 
they might benefit from deregulation is simply not a 
basis for changing how the FHA is interpreted.

Third, the Court can affirm the unanimous 
conclusion of all of the circuit courts and HUD — that 
disparate impact claims are cognizable under the FHA 
— without running afoul of constitutional concerns. In 
the FHA context, most remedies are race-neutral and, 
thus, do not trigger strict scrutiny. On the margins, 
any remedies that do employ race-conscious measures 
can be strictly scrutinized on a case-by-case basis. For 
example, commanding a defendant to discontinue a 
practice that perpetuates the effects of de jure 
segregation serves compelling governmental interests 
by remedying the vestiges of de jure discrimination. 
Other times, race-conscious remedies serve compelling 
interests by rooting out surreptitious or subtle forms 
of intentional discrimination. Additionally, the 
disparate impact framework inherently considers 
narrow tailoring by factoring in less discriminatory 
alternatives.

Under these circumstances, stare decisis and 
prudential considerations firmly counsel against the 
reconsideration of Griggs v, Duke Power Co., 401 U.S. 
424 (1971) and Smith u. City of Jackson, 544 U.S. 228 
(2005), decisions by this Court which provide the 
foundation for jurisprudence in an array of bedrock 
civil rights statutes. To excise disparate impact claims 
from the FHA and other civil rights laws would 
fundamentally dismantle our nation’s civil rights 
architecture and upend a half-century of consistent 
federal appellate interpretation of the FHA, Title VII,



5

and the ADEA. Moreover, to do so would disastrously 
set back the very real progress which has been made 
toward eradicating pernicious forms of racial 
segregation, and would undermine the principles upon 
which Congress relied in enacting the FHA.

This Court need not undertake such an aberrant 
and perilous course. This case can -  and should -  be 
resolved on simple and obvious grounds. The FHA, 
Title VII, and the ADEA -  all of which were passed in 
quick succession between 1964 and 1968 -  contain 
similar, effects-focused language: Title VII and the 
ADEA regarding practices that “otherwise adversely 
affect” employment status and the FHA regarding 
practices that “otherwise make unavailable or deny” 
housing. Given the animating history of these 
statutes, as well as the logical and common sense 
principle that comparable language in proximate 
statutes should be construed similarly, it is not 
surprising that each statute has been repeatedly 
interpreted by the courts as authorizing disparate 
impact claims. At worst, the FHA’s language, 
“otherwise make unavailable or deny,” is ambiguous, 
in which case, the consistent view of federal appellate 
courts over thirty years -  and the recent HUD 
regulation interpreting that phrase — is entitled to 
deference.



6

ARGUMENT
I. PERSISTENT HOUSING SEGRE­

GATION CONSTRAINS INDIVIDUAL 
ECONOMIC POTENTIAL, DISTORTS 
MARKET DYNAMICS, AND JUSTIFIES 
ONGOING DISPARATE IMPACT 
ENFORCEMENT.

The origins of the FHA are rooted in a system of 
segregated housing so severe that it left a legacy of 
lasting, intertwined economic and social ills based on 
race. Those vestiges live on today, continuing to warp 
free market forces, inject economic inefficiencies, and 
constrain earning potential in ways that ultimately 
impede financial liberty and degrade individual
dignity. The FHA was enacted to eradicate this system 
and remedy the multitude of harms it causes. These 
objectives and implications bear upon the Court’s 
current analysis and augur strongly in favor of 
maintaining the disparate impact framework. See 
United States u. Heirs of Boisdore, 49 U.S. (8 How.) 
113, 122 (1850) (opinion of Court) (“In expounding a 
statute, we must not be guided by a single sentence or 
member of a sentence, but look to the provisions of the 
whole law, and to its object and policy.”).

A. Issues of dignity and morality resulting 
from entrenched and deliberate
residential segregation undergirded 
passage of the FHA.

For decades, federal, state, and local governments 
proactively enforced and subsidized systemic de jure 
housing segregation. See generally Douglas S. Massey 
& Nancy A. Denton, American Apartheid: Segregation 
and the Making o f the Underclass (1993); Br. of 
Housing Scholars as Amici Curiae 8-36 (detailing 
government policies promoting residential



7

segregation). For example, the Federal Housing 
Administration required, actively promoted, and 
condoned the use of racially restrictive covenants and 
systematically excluded Black neighborhoods from 
receiving loans. Massey & Denton, supra, at 54-55. See 
also Richard Rothstein, Race and public housing: 
Revisiting the federal role, Poverty & Race Voi. 21, No. 
6 at 1 (Dec. 17, 2012). Federal officials literally divided 
cities by race with “redlining” tactics that undervalued 
minority or mixed neighborhoods. See Massey & 
Denton, supra, at 51-52. These practices did not end as 
official policy until the mid-1960s. Elsewhere, state 
officials cut off Black neighborhoods by design, often 
using man-made divides like new highways. See, e.g., 
Richard Rothstein, The Making of Ferguson Public 
Policies at the Root of its Troubles, Econ. Pol’y Inst. 
(Oct. 15, 2014).

As the civil rights movement drew attention to the 
devastation wrought by the myriad forms of racial 
segregation, a common theme emerged: that
segregation inflicted a deep and lasting insult to the 
dignity of the humans it constrained. Dr. Martin 
Luther King, Jr. powerfully highlighted the feelings of 
humiliation and isolation that substandard segregated 
housing wrought upon Black communities. He 
described the “other America,” where almost forty 
percent of Black families lived in often “vermin-filled, 
distressing housing conditions.” See Dr. Martin Luther 
King, Jr., The Other America (Mar. 14, 1968). He 
explained that segregated housing “confined [Blacks] 
to a life of noiselessness and powerlessness,” see Dr. 
Martin Luther King, Jr., Speech Before the Southern 
Christian Leadership Conference, Atlanta, Georgia 
(Aug. 16, 1967), and relegated them to an “island of 
despair,” see Dr. Martin Luther King, Jr., A Statement 
by Dr. King (July 17, 1966). In his storied speech at



8

the March on Washington, Dr. King proclaimed that 
ending racial segregation necessitated sweeping 
change: “ [w]e cannot be satisfied as long as the Negro’s 
basic mobility is from a smaller ghetto to a larger one.” 
See Dr. Martin Luther King, Jr. I Have a Dream (Aug. 
28, 1963).2 Dr. King was not alone in recognizing this 
link. Other faith leaders acknowledged that 
discrimination and “subhuman living conditions” 
“insult[] human dignity.” United States Catholic 
Conference, Pastoral Constitution on the Church in 
the Modern World (1965).

Just two days after Dr. King’s tragic assassination 
on April 4, 1968, President Johnson extolled the 
“fundamental of human dignity” afforded by equal 
housing opportunity and exhorted the House to pass 
the Fair Housing Act as a tribute to Dr. King. See 
Charles M. Lamb, Housing Segregation in Suburban 
America since 1960: Presidential and Judicial Politics 
42 (2005) (internal quotation marks omitted).3
Congress enacted this landmark legislation on April 
10, 1968, with full knowledge of the significant 
concerns about dignity expressed by Dr. King,

2 See also Dr. Martin Luther King, Jr., His Influence Speaks to 
World Conscience, New Delhi, India (Jan. 30, 1958) (describing 
non-violent resistance to racial segregation as a “struggle for 
freedom and human dignity”); Letter from a Birmingham Jail 
(Apr. 16, 1963) (“Now is the time to lift our national policy from 
the quicksand of racial injustice to the solid rock of human 
dignity.”).

3 President Johnson and Congress also recognized the role of 
dignity and morality in the passage of the Civil Rights Act of 
1964. See, e.g,, President Lyndon B. Johnson, Remarks at a 
Reception for Members of the American Society of Newspaper 
Editors (Apr. 17, 1964) (“We cannot deny to a group o f . . .  our own 
American citizens!] the essential elements of human dignity.”). 
See generally Bruce Ackerman, We The People, Volume 3: The 
Civil Rights Revolution (2013).



9

President Johnson, and others, which undergirded the 
need to address the harms of segregated housing. 
Indeed, Congress enacted the FHA in 1968 — and 
amended it in 1988 -  after establishing a record 
replete with evidence of persistent segregation and 
racial discrimination by both public and private actors 
and their effect on housing opportunities.4

Notwithstanding the broad reach of this legislation, 
housing segregation persists. A recent study found 
that “[rjacial segregation itself is the prime predictor” 
of where minorities live, in spite of some progress over 
the last few decades. John Logan, Separate and 
Unequal: The Neighborhood Gap for Blacks, Hispanics 
and Asians in Metropolitan America, US2010 Project, 
July 2011, at 1, 3. The perseverance of segregation 
stems largely from the de jure structures and policies 
that laid the foundation for today’s housing market. 
See generally Massey & Denton, supra, at 60-114.

Present-day residential segregation is more 
pervasive than many realize. See, e.g., Haya El Nasser, 
Census data show ‘surprising’ segregation, USA Today, 
Dec. 20, 2010. While state-sanctioned segregation in 
housing is no longer legal per Shelly v. Kraemer, 334 
U.S. 1 (1948), many troubling patterns still persist. In 
2011, U.S. Census officials found that “[djespite [some] 
declines, residential segregation was still higher for 
African Americans than for the other groups across all 
measures,” and other ethnic groups and cities, in

4 See, e.g., 114 Cong. Rec. 2277 (Feb. 6, 1968) (Sen. Mondale) (“An 
important factor contributing to exclusion of Negroes from 
[suburban communities and other exclusively white areas], 
moreover, has been the policies and practices of agencies of 
government at all levels.”); 134 Cong. Rec. 10454 (Aug. 1, 1988) 
(Sen. Kennedy) (“Housing discrimination exists in America today, 
and it exists in epidemic proportions.”).



10

particular, experienced mixed results. See U.S. Census 
Bureau, Housing and Household Economic Statistics 
Division (Oct. 31, 2011); see also William Frey, The 
New Metro Minority Map: Regional Shifts in 
Hispanics, Asians, and Blacks from Census 2010, 
Brookings Institution, Aug. 2011, at 1 (“Despite recent 
declines, blacks remain more residentially segregated 
than either Hispanics or Asians.”). The persistence of 
these troubling patterns, despite the end of state- 
sponsored de jure segregation, demonstrates the 
continuing need for disparate impact enforcement.

B. Housing segregation imposes a wide 
array of socioeconomic harms that can 
only be fully eliminated through a 
framework that includes a disparate 
impact standard.

Residential segregation inflicts a host of interrelated 
ills that adversely affect the socioeconomic condition of 
individuals and communities. Indeed, this Court has 
recognized profound “harms flowing from the realities 
of a racially segregated community.” Gladstone, 
Realtors u. Vill. o f Bellwood, 441 U.S. 91, 109-111 
(1979).

The economic effects of housing segregation are well 
established and severe. “Decades of scholarly research 
have documented [how] . . . the persistence of 
segregation sustains racial and ethnic inequality in 
the United States and undermines prospects for long­
term prosperity.” Margery Austin Turner & Lynette A. 
Rawlings, Promoting Neighborhood Diversity: 
Benefits, Barriers, and Strategies, The Urban 
Institute, Aug. 2009, at 3. See also infra § I.C. For 
example, Dallas features both startlingly high levels of 
segregation in public housing and also profound 
economic stratification. Petitioners segregated 92.29%



11

of low-income units into minority areas of Dallas, a 
result that is uncomfortably close to the 95% level of 
segregation in public housing that was previously 
achieved through de jure measures. Resp. Br. 1, 33. 
Additionally, Dallas ranks second among the nation’s 
ten largest metropolitan areas in terms of residential 
segregation by income. See Richard Fry & Paul Taylor, 
The Rise of Residential Segregation by Income, Pew 
Research Center, Aug. 2012, at 3.

Equally important are the intersections between 
housing and educational prospects. In part, because of 
the prevalence of neighborhood schools in the lower 
grades, housing segregation remains firmly tethered 
to educational segregation and impairs educational 
opportunity. “It has been widely recognized . . . that 
school segregation is linked closely to housing 
segregation,” Gladstone, 441 U.S. at 111 n.24, and has 
direct and potentially devastating consequences on the 
quality of education that students receive. See also 
Richard Rothstein, Segregated Housing, Segregated 
Schools, Education Week (Mar. 25, 2014); In Pursuit 
of a Dream Deferred: Linking Housing and Education 
Policy (john a. powell et al., eds. 2001).

Likewise, segregated neighborhoods have a 
significant impact on social mobility. Students are cut 
off, sometimes quite literally, from learning with 
students of different backgrounds, and adults are 
separated from meaningful social interactions and 
related professional trajectories. See generally 
Elizabeth Anderson, The Imperative of Integration 3 
(2010) (“Segregation . . . isolates disadvantaged groups 
from access to public and private resources, from 
sources of human and cultural capital, and from the 
social networks that govern access to jobs, business 
connections, and political influence.”).



12

Housing segregation also has statistically 
significant effects on public health, stemming in part 
from decisions to site low-income housing near 
environmental hazards and industrial facilities. See, 
e.g., David R. Williams & Chiquita Collins, Racial 
residential segregation: a fundamental cause of racial 
disparities in health, 116 Pub. Health Rep. 404 (Sept.- 
Oct. 2001); Jens Ludwig et al., Neighborhoods, 
Obesity, and Diabetes -  A Randomized Social 
Experiment, 365 New Eng. J. Med. 1509, 1509 (2011). 
Congress understood these broader, inter-related 
effects of housing segregation at the time it passed the 
FHA,5

The isolated instances of individuals finding a path 
out of such circumstances do not lessen the daily harm 
imposed on the millions who do not. As this Court has 
recognized, “[f]rom the standpoint of the victim, it is 
true, an injury stemming from racial prejudice can 
hurt as much when the demeaning treatment based on 
race identity stems from bias masked deep within the 
social order as when it is imposed by law.” Parents 
Involved in Cmty, Schs. v. Seattle Sch. Dist. No. 1, 551 
U.S. 701, 795 (2007) (Kennedy, J., concurring in part 
and concurring in the judgment).

The repercussions of housing segregation are further 
heightened when the government originally caused or 
facilitated the harms. Infra n,12. Many disparate 
impact claims relate to de facto conditions that are 
fairly traceable to de jure practices that were 
imbedded in federal and state policies. This is directly

5 Segregation also harms non-minority communities and 
impedes economic growth in suburbs and cities writ large. See, 
e.g., Huiping Li, et al., Residential Segregation, Spatial Mismatch 
and Economic Growth across U.S. Metropolitan Areas, 50 Urban 
Stud. 13, 2642-60 (Oct. 2013).



13

attributable to federal and state policies promoting 
racial segregation, and overt segregative practices by 
private individuals.

Disparate impact, however, can fill the void and root 
out the discriminatory origins undergirding current 
social conditions and structures. The ability to bring 
claims against housing practices with highly racial 
effects is one of the few effective means to investigate 
and address the legacy of de jure practices. For forty 
years, courts have utilized disparate impact analyses 
in FHA claims for this very reason.6 For example, if a 
city council decided to intentionally segregate a town 
through a facially race-based zoning ordinance, that 
would present a straightforward case of intentional 
discrimination. With the passage of time, it may 
become more difficult to bring an intentional 
discrimination claim even though the neighborhood 
remains segregated as intended. Documents are lost, 
decision-makers pass on, and the causal chain 
becomes less immediate while the centripetal force of 
that pernicious zoning decision persists. In this way, 
disparate impact remains essential to erasing the

6 See generally Stacy E. Seicshnaydre, Is Disparate Impact 
Having Any Impact? An Appellate Analysis of Forty Years of 
Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. 
L. Rev. 357, 364 (2013). It is perplexing that Petitioners and their 
supporting amici complain about the destructive consequences of 
disparate impact claims on businesses when nearly a half-century 
has passed since the Fair Housing Act was enacted. Whether 
some industries might now benefit from deregulation in the 
housing arena is not dispositive of how to interpret the FHA. In 
addition, the proposition that disparate impact claims are newly 
unpredictable is meritless given that four decades of practice and 
extensive agency guidance have fostered a stable enforcement 
climate. “There is no need for panic over the use of disparate 
impact theory in the housing” context. Id.



14

“grandfathered” effects of earlier, intentional acts of 
discrimination.

C. Residential segregation distorts 
market dynamics and degrades 
individual liberty and dignity.

The long shadow of de jure housing segregation also 
darkens the prospects for individual economic freedom 
and free markets. Homes in minority, segregated 
regions have less market value and are less salable. 
Thomas Shapiro et al., The Roots of the Widening 
Racial Wealth Gap: Explaining the Black-White 
Economic Divide 3 (Feb. 2013). In addition, fewer 
Black families own homes than any other racial or 
ethnic group. U.S. Census Bureau News, Residential 
Vacancies and Homeownership in the Third Quarter 
2014 at 9 (Oct. 28, 2014). Segregated Black residents 
build less wealth in their mortgages and encounter 
fewer economic opportunities. This disparity has 
lasting, inter-generational consequences:
neighborhood conditions make it more difficult for 
Blacks to preserve economic advantages and wealth 
and transmit them to their children. See Patrick 
Sharkey, Stuck in Place: Urban Neighborhoods and 
the End of Progress Toward Racial Equality 115 
(2013); see also The Geography of Opportunity: Race 
and Housing Choice in Metropolitan America 3-10 
(Xavier de Souza Briggs, ed., 2005). All too often, these 
lasting fiscal limitations curtail the economic 
advancement that individuals, families, and 
neighborhoods can achieve.

In economic terms, this is a market distortion caused 
by racial bias. Mary Pattillo, Making Fair (Public) 
Housing Claims in a Post-Racism Legal Context, 18 J. 
Affordable Hous. & Cmty. Dev. L. 215, 217-18 (2009) 
(“Past racism has [] distorted the functioning of



15

institutions and markets -  here, the housing market”). 
An axiom of modern economic theory is that 
individuals make rational, independent financial 
decisions that maximize their utility. See E. Roy 
Weintraub, Neoclassical Economics, in The Concise 
Encyclopedia of Economics (1st ed. 1993). Indeed, the 
principle of individual economic liberty turns on the 
premise that individuals are generally free to engage 
in such rational financial decision-making. Under 
ideal circumstances, free markets operate fluidly when 
unencumbered by distortions that impede such logical 
financial decisions. Arnold C. Harberger, 
Microeconomics, in The Concise Encyclopedia of 
Economics (2nd ed. 2008).

Racial bias interferes with the rational workings of 
a competitive market. When de jure segregation 
existed, the economic distortion of racial bias was 
expressly manifest in, for example, government 
prohibitions against property sales between certain 
races despite the parties’ potential agreement that a 
given transaction and price were rational and 
mutually beneficial. This economic distortion deprived 
both the buyer and seller of economic liberty and 
value. Thus, Chicago-school economists, as well as 
civil rights groups, assert that racial bias is 
economically inefficient and antithetical to free 
markets. See e.g., Milton Friedman, Capitalism, and 
Freedom 108-10 (40th anniversary ed., 2002).

Today, although more subtle, race-neutral
mechanisms are mainly responsible for the persistence 
of housing segregation, the distortive consequences 
are just as severe. Pattillo, supra, at 217-18. These 
distortions are further amplified because
neighborhoods change slowly, and many residents 
cannot afford to move to other neighborhoods often,



16

particularly those who already struggle with other 
financial constraints. See Kyle Crowder et al., 
Neighborhood Diversity, Metropolitan Constraints, 
and Household Migration, Am. Soc. Rev. 77(3) 325— 
353 (2012). Even when residents can afford to move, 
neighborhood choice is often prescribed by policies that 
steer minorities to certain neighborhoods. See 
Sharkey, supra, at 53-54.

A government’s conscious or subconscious decision to 
create, reinforce, or benignly perpetuate residential 
segregation is pivotal to market distortions because 
such governmental acts often lead to long-term 
segregation, even if some segregated residents acquire 
enough financial stability to have some measure of 
choice in where they live. See Parents Involved, 551 
U.S. at 798 (Kennedy, J,, concurring in part and 
concurring in the judgment) (“Due to a variety of 
factors — some influenced by government, some not — 
neighborhoods in our communities do not reflect the 
diversity of our Nation as a whole.”). Racialized 
market distortions, therefore, should come as no 
surprise given that de jure segregation was literally 
mapped out, promoted, and enforced by governments 
for much of the twentieth century.

Altogether, this tangle of interlocking ills adds up to 
a troubling set of constraints. It is extremely difficult 
for most individuals to move up or move out. This is 
hardly a paradigm of efficient markets and free choice. 
It is the consequence of distinct, long-standing and 
inherited segregative policies that continue to 
powerfully resonate in the limited economic, 
educational and life choices of millions of African 
Americans in communities all over the country.

This situation has weighty repercussions on the self- 
determination and dignity of the individuals who live



17

in segregated neighborhoods and have limited 
opportunities to leave. This Court has rightly 
recognized the inherent value of self-worth in a variety 
of other analogous circumstances. See United States v, 
Windsor, 133 S. Ct. 2675, 2696 (2013) (dignity of 
individuals and same-sex marriages); Planned 
Parenthood u. Casey, 505 U.S. 833, 851 (1992) (dignity 
and autonomy of “personal decisions relating to 
marriage, procreation, contraception, family 
relationships, child rearing, and education”); Hall v. 
Florida, 134 S. Ct. 1986, 1992 (2014) (inherent dignity 
of those with intellectual disabilities); Lawrence v. 
Texas, 539 U.S. 558, 567 (2003) (dignity of intimate 
relationships); Roper v. Simmons, 543 U.S. 551, 578- 
579 (2005) (dignity of juvenile criminal defendants); 
Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (dignity 
of prisoners). Those principles apply with equal force 
here. Segregated housing and lack of agency in 
housing decisions imposes a host of harmful 
conditions, connotations, and constraints that 
disrespect the inherent self-determination and dignity 
to which each individual is entitled.

II. THE DISPARATE IMPACT STANDARD 
IS WORKABLE, FAIR, AND 
EFFECTIVE AT ROOTING OUT
UNJUSTIFIED BARRIERS TO
HOUSING OPPORTUNITY.

The application of the disparate impact standard to 
fair housing claims is fully consistent with the 
purposes of the FHA. It does not cause the parade of 
horribles proposed by Petitioners and their supporting 
amici.7

7 Petitioners claim that upholding the disparate impact 
standard will lead to a vague and indeterminate enforcement



18

Rather, the disparate impact standard has proven to 
be readily administrable. In particular, the standard’s 
burden-shifting framework8 is a feasible approach to 
protect those policies and practices that are necessary 
to achieve legitimate, nondiscriminatory objectives, as 
illustrated not only by its long-standing application in 
fair housing cases, see, e.g., Huntington Branch, 
NAACP v. 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 Chicago, 560 U.S. 205 (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) (discrimination in programs and activities 
receiving federal funds).

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

regime that assigns liability whenever racial effects are not 
perfectly symmetrical. Pet. Br, 47-51. Their supporting amici 
claim that the standard would disrupt homeowners insurance 
and upend actuarial principles, see Br. for the American 
Insurance Association et al., as Amici Curiae 9-24, and damage 
mortgage lending and risk-based standards, see Br. for the 
American Financial Association et al., as Amici Curiae 22-35.

8 Although the disparate impact burden-shifting framework is 
not directly at issue in this case, see Twp. of Mount Holly v. Mount 
Holly Gardens Citizens in Action, 133 S. Ct. 2824 (2013) (limiting 
certiorari to Question 1), Magner v. Gallagher, 132 S. Ct. 1306 
(2013) (same), understanding how it operates in practice is 
helpful in countering Petitioners’ claims that disparate impact 
enforcement is unworkable or burdensome.



19

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.

Plaintiffs at the prima facie stage bear the initial 
burden of offering evidentiary proof that “a challenged 
practice caused or predictably will cause a 
discriminatory effect.” 24 C.F.R. § 100,500c(l). This 
Court has eschewed a “rigid mathematical formula” 
for this adverse effects showing. Watson, 487 U.S. at 
995. Instead, the Court has expressed a preference for 
a “case-by-case approach” to accommodate the 
‘“infinite 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 v. United States, 431 U.S. 324, 340 (1977)). 
In its final regulation, HUD endorsed the same “case- 
by-case” approach. U.S. Dep’t of Hous. & Urban Dev., 
Implementation of the Fair Housing Act’s 
Discriminatory Effects Standard, 78 Fed. Reg. 11,460, 
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’ statistical evidence. See 
Watson, 487 U.S. at 996 (describing 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 discriminatory 
effect. 24 C.F.R. § 100.500(c)(1). Courts of appeals have 
recognized that inferences may be used to establish 
this causal link. See, e.g., Hallmark Developers, Inc. v.



20

Fulton Cnty., 466 F.3d 1276, 1287 (11th Cir. 2006) 
(collecting cases); Tsombanidis u. W. Haven Fire Dept, 
352 F.3d 565, 577 (2d Cir. 2003) (supporting similar 
causal analysis); Keith v. Volpe, 858 F.2d 467, 484 (9th 
Cir. 1988) (same); Resident Advisory Bd. v. Rizzo, 564 
F.2d 126, 142 (3rd Cir. 1977) (same).

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 practice 
and its alleged adverse effects. Indeed, “ jwjhat is 
misleading about two recent summary judgment 
reversals [in Magner and Mount Holly] is that they 
mask” the reality that “appellate courts have 
overwhelmingly controlled for perverse outcomes 
considering the forty-year history of the FHA.” See 
Seicshnaydre, supra, at n.6, 362, 364. Disparate 
impact claims are “fact-intensive,” and “ [pjlaintiffs 
have received positive decisions in only 20%, or 
eighteen of the ninety-two FHA disparate impact 
claims considered on appeal,” and “have been able to 
reverse only four summary judgments in forty years 
including [Magner and Mount Holly]," Id. at 363-64. 
See also McCauley v. City of Jacksonville, 739 F. Supp. 
278, 282 (E.D.N.C. 1989) (granting summary
judgment to municipality due to lack of “evidence . . . 
from which one could infer that a significantly higher 
percentage of . . . families [qualified for rent low- 
income units] would have been black”).



21

B. After a prima facie case is established, 
liability attaches only if the defendant 
fails to justify its policy or if its 
legitimate 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 at 
this second stage, plaintiffs must then demonstrate 
that those interests “could be served by another 
practice that has a less discriminatory effect.” Id. at § 
100.500(c)(3).

A defendant may rebut a prima facie case of 
disparate impact by demonstrating that the 
challenged practice is justified by an interest that is 
“substantial” (i.e., “a core interest of the organization 
that has a direct relationship to the function of that 
organization”), “legitimate” (i.e., “genuine and not 
false”), and itself “nondiscriminatory.” 78 Fed. Reg. at 
11,470. Provided these criteria are satisfied, there is 
no dispute that legitimate government interests may 
include alleviating housing segregation as in the 
instant case; protecting local infrastructure, such as 
sewage systems, see Mountain Side Mobile Estates 
P ’ship v. Secy of Hous. & Urban Dev., 56 F.3d 1243, 
1255-57 (10th Cir. 1995); or addressing quality of life 
concerns, such as density, traffic flow, and pedestrian 
safety, see id.

Therefore, the objections of Petitioners and their 
supporting amici -  that they would be precluded from 
pursuing legitimate business goals, see e.g., Br. for the 
American Insurance Association et al., as Amici 
Curiae 9-24, or administering public policy, Pet. Br.



2 2

47-51 -  are unfounded. The FHA’s prohibition against 
disparate impact discrimination does not condemn 
policies merely 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, 
legitimate, non-discriminatory goals. 24 C.F.R. § 
100.500(c)(2); see Graoch Assocs. #33, L.P. v. 
Louisville/Jefferson Cnty, Metro, Human Relations 
Comm’n, 508 F. 3d 366, 374-75 (6th Cir. 2007) (“Of 
course, not every housing practice that has a disparate 
impact is illegal. We use the burden shifting 
framework described above . . .  to distinguish the 
artificial, arbitrary, and unnecessary barriers 
proscribed by the FHA from valid policies and 
practices crafted to advance legitimate interests.”).9

If the defendant makes this showing of a substantial, 
legitimate, non-discriminatory interest, the case 
proceeds to the third stage of the burden-shifting 
framework, where the plaintiff must propose an 
alternative, which can then be compared to the 
challenged practice. 24 C.F.R. § 100.500(c)(3); Langlois 
v. Abington Hous. Auth,, 234 F. Supp. 2d 33, 70 (D. 
Mass. 2002). The trier of fact must determine whether

9 Moreover, the defendant generally has better knowledge of -  
and access to -  information regarding its own interests and how 
best to serve them. See 78 Fed. Reg. at 11,473-74. Allocating the 
burden to the plaintiff at the second stage is inconsistent with the 
plaintiffs’ burden of proof at the third stage to demonstrate that 
“the substantial, legitimate, non-discriminatory interests 
supporting the challenged 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 the plaintiff at the third stage 
naturally requires some understanding of the actual grounds 
upon which the defendant relied when it adopted the policy or 
practice.



23

the plaintiffs proposal is workable and whether it 
furthers the defendant’s legitimate goals while 
reducing the disparate effects on the protected class. 
See Darst-Webbe Tenant Ass’n Bd. v. St. Louis Hous. 
Auth., 417 F,3d 898, 902-03 (8th Cir, 2005). The 
feasibility of the alternative offered by the plaintiff 
“must be supported 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 
example, a lender’s interest in assessing credit risk, 
see Br. for the American Financial Services 
Association et al., as Amici Curiae 22-35, or an 
insurance company’s interest in assessing risk, see Br. 
for the American Insurance Association et al., as Amici 
Curiae 9-24, is unfounded. “ [A] less discriminatory 
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 the 
defendant’s legitimate interests because another 
practice, offered by the plaintiff, can effectively serve 
those same interests. Id. at 11,475 (noting that the 
“burden-shifting framework” distinguishes 
“unnecessary barriers” from “valid policies and 
practices crafted to advance legitimate interests”) 
(quoting Graoch Assocs., 580 F.3d at 374-75). This 
means that housing subsidy plans that have both 
beneficial and discriminatory effects may still be



24

unlawful if there is another, less discriminatory means 
by which to accomplish the same objective.

III. THE CANON OF CONSTITUTIONAL 
AVOIDANCE IS INAPPLICABLE TO 
DISPARATE IMPACT CLAIMS UNDER 
THE FHA.

As Respondents and the Solicitor General explain, 
the FHA’s text, structure, and legislative history 
authorize disparate impact claims. Should the Court 
find the statute ambiguous, however, the canon of 
constitutional avoidance is inapplicable, 
notwithstanding the contrary arguments of 
Petitioners and their supporting amici.

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 quotation 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 appeal and HUD, as 
confirmed in its recently promulgated rule, that the 
disparate impact framework advances the FHA’s core 
purposes.

A. Most FHA remedies do not trigger strict 
scrutiny.

Petitioners’ invocation of the canon of constitutional 
avoidance is premised on the deeply flawed notion that 
application of disparate impact to the allocation of tax 
credits would require race-conscious decision-making 
in order to avoid legal liability. Pet. Br. 43. Nothing 
could be further from the truth.



25

First, Petitioners’ concerns about “racial balancing,” 
Pet. Br. 44, are overwrought. State governments are 
unquestionably cognizant of this Court’s holdings that 
“outright racial balancing,” for its own sake, is 
“patently unconstitutional.” Grutter v. Bollinger, 539 
U.S. 306, 330 (2003). Indeed, most remedies in the 
FHA context are straightforward as well as race- 
neutral.

Second, there are many options for government 
officials to avoid or redress disparate impact liability 
that do not trigger strict scrutiny. 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 selection of 
new schools; drawing attendance zones with general 
recognition of the demographics of neighborhoods; 
allocating resources for special programs; 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 promotions and to participate 
in the process by which promotions will be made”). 
These measures may still lend themselves to judicial 
review, but need not implicate strict scrutiny.

Similarly, when allocating low-income housing tax 
credits, local governments should be able to consider 
the demographics of targeted neighborhoods without



26

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 u. 
Yonkers Bd. of Educ„ 837 F,2d 1181, 1184, 1236 (2d 
Cir. 1987) (upholding order to build 200 public housing 
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 
settlements and court-ordered remedies for FHA 
disparate impact claims, most relief is facially race 
neutral insofar as it benefits all individuals, and not 
just the disparately impacted racial minorities who 
were subjected to the challenged policy. This is 
particularly true in the context of decreasing housing 
segregation.

Moreover, as Respondents point out, Resp. Br. 20, 
and notwithstanding Petitioners’ contention to the 
contrary, Pet. Br. 43-44, a remedy in this case would 
not require the allocation of benefits or burdens based 
on individual racial classifications. For instance, the 
remedial plan ordered here simply required Texas to 
consider neutral factors, such as the allocation of tax 
credits for sites near hazardous or nuisance conditions 
like industrial facilities, landfills, or high-crime areas. 
Resp. Br. 28.



27

B. Racial classifications used to remedy 
disparate impact discrimination will be 
subject to a case-specific strict scrutiny 
analysis.

Even if some remedies for disparate impact 
discrimination may allocate benefits or burdens based 
on an individual’s race, that mere possibility should 
not automatically trigger any “grave” constitutional 
concerns with the overall statutory disparate impact 
framework. Rust, 500 U.S. at 191. There is a well- 
established strict scrutiny standard for evaluating the 
constitutionality 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 remedy for a government 
actor’s disparate impact discrimination under the 
FHA (or any other federal civil rights statute that 
permits such claims), a defendant would not face 
difficulty in satisfying the compelling interest or 
narrow tailoring prong of strict scrutiny.

1. Demonstrating a “compelling 
interest” under strict scrutiny 
analysis.

This Court can straightforwardly affirm that 
disparate impact remedies, to the extent they are race­
conscious in the FHA context, serve a compelling 
government interest. The Court has invariably 
presumed that compliance with presumptively valid 
federal antidiscrimination law is a compelling 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). That presumption is equally 
applicable here. This Court has also repeatedly 
endorsed disparate impact analysis, without ever 
questioning its constitutionality. See, e.g., Lewis, 130



28

S. Ct. at 2197-98: Watson, 487 U.S. at 986-87; Griggs, 
401 U.S. at 431.

Even if the Court feels the need to delve further, 
disparate impact claims under the FHA fulfill two 
complementary goals that serve compelling interests 
while steering clear of other constitutional concerns.

First, the FHA’s disparate impact framework serves 
a compelling interest by rooting out subtle or 
surreptitious intentional discrimination. As this Court 
has recognized in other contexts, severe disparate 
impact can provide probative evidence of 
discriminatory intent, See, e.g., Teamsters, 431 U.S. at 
339-40 & n.20 (1977); Vill. of Arlington Heights v. 
Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). The 
three-part, burden-shifting framework under the 
disparate impact standard provides a powerful, 
evidentiary tool for sussing out, in an orderly and 
sensible fashion, policies or practices that are 
surreptitiously discriminatory. See e.g., In re Emp’t 
Discrimination Litig. Against Ala., 198 F.3d 1305, 
1321 (11th Cir. 1999) (“[A] genuine finding of disparate 
impact can be highly probative of the [defendant]’s 
motive since a racial ‘imbalance is often a telltale sign 
of purposeful discrimination.’”) (quoting Teamsters, 
431 U.S. at 339-40 n.20). Under the third step of the 
framework, “the Supreme Court has been even more 
unambiguous in characterizing an employer’s refusal 
to adopt the alternative practice as ‘evidence that the 
employer was using its tests merely as a ‘pretext’ for 
discrimination.” Id. at 1322 (quoting Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975))d° 10

10 In addition, “even if one assumed that [intentional] 
discrimination can be adequately policed through disparate 
treatment analysis, the problem of subconscious stereotypes and



29

Petitioners fail to acknowledge these authorities and 
instead obliquely lament that it can be difficult to 
disprove discriminatory intent. Pet. Br. 35. But 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 enforcement. Cf. 
Ricci, 557 U.S. at 595 (Scalia, d., concurring). 
Likewise, in rebuffing a constitutional challenge to 
Title VII’s disparate impact framework for the 
workplace, the Eleventh Circuit reasoned:

If, after a prirtia facie demonstration 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 
discriminatory practice other than that some 
invidious practice is probably at work?

In re Emp’t Discrimination Litig. Against Ala., 198 
F.3d at 1321-22.11

prejudices would remain.” Watson v. Fort Worth Bank and Trust, 
487 U.S. 977, 990 (1998).

11 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 constitutional violations can fall within the sweep of 
Congress’ enforcement power even if in the process it prohibits 
conduct which is not itself unconstitutional.” City of Boerne v. 
Flores, 521 U.S. 507, 518 (1997). Using that rationale, this Court 
has endorsed “prophylactic legislation” prohibiting disparate 
impact discrimination in order to enforce the Fourteenth 
Amendment’s equal protection guarantee. Tennessee v. Lane, 541 
U.S. 509, 520 (2004); see also Nev. Dep’t of Human Res. v. Hibhs, 
538 U.S. 721, 737-38 (2003). Notably, this Court’s cases 
recognizing Congressional intent to prohibit disparate impact 
discrimination under Title VII do not justify disparate impact



30

Second, the FHA’s disparate impact framework 
serves another compelling interest by remedying the 
vestiges of de jure segregation and identifying 
practices that would freeze that harmful legacy in 
place. Disparate impact enforcement reflects a concern 
that the disadvantages faced by “minority citizens, 
resulting from forces beyond their control, not be 
allowed 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 substantial 
and unfortunate degree, such disadvantages are the 
result of prior unconstitutional, state action, and the 
case law is abundantly clear that government 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 fairness of public housing 
policies and, as a consequence, the legitimacy of the 
government itself. Cf. Wygant u. Jackson Bd, of Educ., 
476 U.S. 267, 290 (1986) (O’Connor, J., concurring).12

merely as an evidentiary dragnet; instead, the Court has 
recognized that disparate impact enforcement also operates as a 
broader “prophylactic” 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).

12 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



31

2. Demonstrating “narrow tailoring” 
under strict scrutiny analysis.

Disparate impact analysis is a presumptively valid 
tool to effectuate the FHA’s goals and, thus, satisfies 
the “compelling interest” prong of strict scrutiny. 
Accordingly, any lingering concerns about the 
constitutionality of a specific race-conscious remedy or 
voluntary compliance effort implemented by a 
government actor should be addressed as a matter of 
reviewing the narrow tailoring in the particular 
circumstances at issue. Petitioners, see Pet. Br. 43-44, 
and some of their supporting amici, see, e.g., Br. of 
Amicus Curiae The Project on Fair Representation 18, 
focus on Justice Scalia’s concurrence in Ricci, where he 
speculated about potential tension between disparate 
impact and disparate treatment. Ricci, 557 U.S. at 594 
(Scalia, J., concurring). Yet the narrow-tailoring prong 
of strict scrutiny 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. Starred City Assocs., 840 F,2d 1096, 
1103 (2d Cir. 1988) (striking down tenant selection 
procedure that utilized “rigid racial quotas of 
indefinite duration to maintain a fixed level of

actually or predictably results in a disparate impact on a group of 
persons or creates, increases, reinforces, or perpetuates 
segregated housing patterns.” (emphasis added)); see 78 Fed. Red. 
at 11,463; Graoch Assocs., 508 F.3d at 378; Huntington Branch, 
844 F.2d at 937.



32

integration”), with Jaimes v. Lucas Metro, Hous. 
Author., 833 F.2d 1203, 1206-07 (6th Cir. 1987) 
(upholding a tenant selection plan for a municipal 
housing complex, which classified applicants based on 
their race).

Thus, as a general matter, FHA disparate impact 
enforcement and the remedies it requires do not raise 
constitutional concerns. Any specific remedies that 
involve racial classifications in the allocation of case- 
specific relief by government actors -  unlike the less 
discriminatory alternatives proposed in this case — can 
be addressed through well-established mechanisms of 
heightened judicial review.

CONCLUSION
This case can be resolved on straightforward 

grounds of statutory interpretation and/or Chevron 
deference. There is no legal basis for the Court to 
dismantle foundational doctrine within our nation’s 
civil rights architecture. Rather, in light of the 
significant equities concerning economic opportunity 
and human dignity that are implicated by entrenched 
housing segregation, the Court must preserve 
disparate impact claims under the Fair Housing Act. 
For the foregoing reasons, this Court should affirm the 
judgment of the Fifth Circuit.



33

Respectfully submitted,

S h e r r il y n  I fill  
Director- Counsel 

J a n a i N e lso n  
C h r is t in a  Sw a r n s  
J in  H ee  L ee 
R a c h e l  M . K l e in m a n  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  F u n d , In c . 
40 Rector Street,

5th floor
New York, NY 10006

L e slie  M . P r o l l  
J o h n  Pa u l  S c h n a p p e r - 

Ca s t e r a s  *
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  Fu n d , In c . 
1444 I Street NW 
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

Counsel for Amicus Curiae

December 24, 2014 * Counsel of Record

mailto:jschnapper@naacpldf.org