Supreme Court finds disparate impact claims cognizable in housing cases

The Supreme Court has just affirmed the Fifth Circuit’s ruling that the Fair Housing Act allows lawsuits based on disparate impact – that is, an allegation that a law or practice has a discriminatory effect, even if it wasn’t based on a discriminatory purpose. The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

The vote was 5-4. Justice Kennedy wrote the opinion.

Without reading the opinion, it’s difficult to evaluate the decision, but it appears to be an important victory for the left.

Among other consequences, the Supreme Court apparently has given the green light to the Obama administration’s “Affirmatively Furthering Fair Housing” agenda. As we have warned, this is a program through which the left, leveraging disparate impact theory, seeks to use the power of the national government to create communities of a certain kind, each having what the federal government deems an appropriate mix of economic, racial, and ethnic diversity.

Let’s hope that Justice Kennedy’s opinion contains limiting principles that might serve as an obstacle to such massive overreach.

Ironically, the Justice Department settled two cases in which this issue was headed towards a ruling by the Supreme Court. With disparate impact theory widely accepted in the lower courts, DOJ desperately wanted to avoid having the Supreme Court assess it.

The Obama administration need not have worried. The Supreme Court is, for the most part, a paper tiger, as its ruling today in the Obamacare subsidies case reminds us.

The Supreme Court doesn’t bark and the caravan moves on.

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