My thanks to Joe Rich and Sarah Welling for helpful comments. Inclusive Communities Project, Inc. Close include a disparate-impact standard of liability. First Gibraltar Bank, 83 F. Town of Huntington, F. City of Black Jack, F. Close In many ways, therefore, ICP will not greatly alter FHA-based litigation, although some elements of the decision are undeniably important.
This Article provides a roadmap for post—ICP fair housing cases. Still, since the mids, when courts began to apply the Griggs interpretation of Title VII to housing cases, impact-based FHA claims have challenged a variety of housing practices, including: Close or persons with disabilities; 9 9 See, e.
City of Treasure Island, F. City of Escondido, F. See generally Robert G. Close Urban renewal, code enforcement activity, and other actions by local officials that reduced housing opportunities for minorities; 10 10 See, e.
City of Norcross, F. Edgewater Park Owners Coop. Close Mortgage underwriting standards and other home-finance practices that result in less favorable treatment of minorities and minority areas; 13 13 See, e. July 25, upholding impact-based challenge against purchaser of discriminatory home loans ; Miller v.
Close Home insurance standards that result in minorities being treated less favorably. Close After a bench trial, the district court found insufficient evidence of intentional discrimination, but did hold the Department liable based on the unjustified segregative impact of its selection criteria. Close Ultimately, Justice Kennedy seemed to rely most heavily on the need for an expansive reading of the FHA to help accomplish its goal of replacing a residentially segregated society with a more integrated one.
Martin Luther King, Jr. It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.
The FHA, however, also prohibits discrimination on the basis of six other factors, 38 38 The FHA outlaws discrimination based on race, color, national origin, religion, sex, familial status, and handicap disability. City of Butler, F. Furthermore, most states and dozens of localities have their own fair housing laws, 41 41 Some thirty-seven states and fifty-five localities have laws determined by HUD to be substantially equivalent to the FHA.
See Schwemm, supra note 9, at app. Close many of which outlaw additional types of discrimination beyond those condemned by the FHA e. Close The FHA specifically preserves these laws. Close A few of these laws e. Close and others have been interpreted to include such a standard based on following pre—ICP federal precedents. Many state courts have chosen to follow federal precedents in interpreting their fair housing laws. Credit Agricole Cheuvreux N. B discusses FHA intent-based claims in which impact evidence is used.
City of Blue Ash, No. This fact is particularly significant in group home cases, 51 51 See supra note 9 and accompanying text citing cases involving impact-based challenges to municipal restrictions on group homes. Close where the reasonable accommodation theory, either with or without an intent-based claim, has proved far more effective in challenging municipal restrictions than the impact theory.
City of Taylor, F. For a description of how this new regulation would work, see Timothy M. Section c Claims. For many years, such a rule in the employment context has been challenged under an impact theory, 64 64 See, e. Close but only recently has it been considered a proper target by fair housing advocates. Interference and Retaliation Claims. Town of Framingham, F. Close Retaliation claims require showing a different kind of intent, i. City of Middletown, F. City of Lakewood, F. Metropolitan Housing Development Corp.
Close In the ensuing decades, Arlington Heights prompted courts in many FHA cases to examine impact evidence as a way of determining whether an intent-based claim could be sustained.
Many of these cases, like Arlington Heights itself, involved exclusionary zoning claims against suburban municipalities accused of race-based discrimination in blocking affordable housing developments. City of Birmingham, F. City of Newport Beach, F. Close This approach was endorsed by ICP, where all nine Justices agreed that practices with a negative impact on minorities are subject to challenge through FHA intent-based claims and that proof of impact is relevant in making out an intent case.
Close Of course, as the ICP case demonstrates, an impact showing alone will not necessarily result in intent-based liability. But because the impact theory endorsed by ICP requires not only a showing of negative impact on a protected class but also that the defendant either lacked a legitimate interest in taking its action or could have achieved that interest with a less discriminatory alternative, 84 84 See supra notes 34—35 and accompanying text noting defendants would prevail under ICP if they prove challenged policy is needed to achieve valid interest unless plaintiffs thereafter prove less discriminatory alternative.
Close such a showing would be a much stronger indication of illicit intent than that made by the unsuccessful plaintiffs in Arlington Heights. Close but whose legitimate safety interests might just as well be served by a less restrictive alternative e. That decision is important, however, and it will change or at least influence how many key FHA issues will be resolved in the future.
This Part deals with those issues in four sections. Close In addition, it reinforces many themes from older Supreme Court decisions that had broadly interpreted the FHA, 87 87 Prior decisions had identified four guiding principles for interpreting the FHA, i.
Close a notable achievement for a civil rights statute in an era when the Court has generally been hostile to such laws. Brand X Internet Servs. Close Of course, this dilemma presupposes that there is a conflict between the agency and judicial views.
Some mortgage-industry representatives have opined that the standards set forth in ICP are more favorable to defendants than those in the HUD regulation, 94 94 See Paul F. Close but this is far from clear. The standards governing the first and third phases of an impact claim i. Close The only arguable difference might be in the second phase i. Close The semantic differences here are slight.