For decades, disparate impact liability has been a critical tool in ensuring that the Constitution’s promise of equality extends to all persons regardless of race. Many laws and policies that are neutral on their face can nonetheless have an outsized and adverse effect on disfavored groups. Disparate impact claims provide a means to enforce rights in the face of such policies. Disparate impact liability has been recognized in such key civil rights laws as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Voting Rights Act. The question in the Inclusive Communities Project case was whether the Fair Housing Act of 1968, like other federal civil rights laws, provides for disparate impact liability.

The Fifth Circuit, agreeing with every other federal court of appeals to consider the question, held that disparate impact claims are available under the Fair Housing Act, but the Supreme Court on October 2, 2014 nonetheless granted Texas’s petition for review. On the merits, Texas argued that the Fair Housing Act does not permit minority residents the opportunity to challenge practices and policies that are neutral on their face, but discriminatory in operation. Going even further, Texas argued that disparate impact liability is a form of racial discrimination against white residents that raises serious constitutional questions under the Equal Protection Clause.

On December 23, 2014, Constitutional Accountability Center filed an amicus curiae brief in support of ICP, arguing that the text and history of the Fourteenth Amendment support Congress’s authority to enact laws that, like Section 804(a) of the Fair Housing Act, prohibit state action neutral in form, but discriminatory in operation, as a means of realizing the promise of equal opportunity codified in the Equal Protection Clause of the Fourteenth Amendment. Indeed, contemporaneous with the passage of the Fourteenth Amendment, the Reconstruction-era Congress enacted measures that, like today’s disparate impact provisions, protected against practices—fair in form but discriminatory in result—that would have operated to deny African Americans important rights and benefits. The very first civil rights laws enacted by the Reconstruction Congress targeted not only explicit racial classifications, but neutrally-worded, generally applicable laws that were used to deny basic civil rights to the newly freed slaves. Texas’s argument that any consideration of race, even mere consideration of race by the government to ensure that its acts do not lead to racial discrimination, depends on willful blindness to the Constitution and the basic facts of Fourteenth Amendment history.

The Court heard oral argument on January 21, 2015.

On June 25, 2015, the Court rejected Texas’s claims as CAC had urged, and held by a 5-4 vote that disparate impact claims are cognizable under the Fair Housing Act. In an opinion by Justice Kennedy, the Court explained that antidiscrimination laws encompass disparate impact liability when their text “refers to the consequences of actions and not just to the mindset of actors.” Because the Fair Housing Act includes results-oriented language that encompasses the effects of an action rather than just the actor’s intent, the FHA, like other important civil rights laws, clearly authorizes disparate impact claims. The Court also recognized that the inclusion of disparate impact liability is consistent with the central purpose of the FHA, which was to eradicate discriminatory practices in housing, and allows plaintiffs to challenge state and federal policies that result in a denial of equal opportunity. By affirming the clear purpose and text of the FHA, the Court preserved the ability of one of the nation’s most important civil rights laws to combat the effects of unconscious prejudices and disguised animus which often fall outside the boundaries of disparate treatment.