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Post date: December 24 2014

A.G. Schneiderman And 16 Other States Urge U.S. Supreme Court To Uphold Disparate Impact Claims Under Federal Fair Housing Act

NEW YORK – Attorney General Eric T. Schneiderman and Massachusetts Attorney General Martha Coakley led a coalition of 17 states in filing an amicus brief in the U.S. Supreme Court urging the court to uphold the longstanding interpretation of the federal Fair Housing Act that allows challenges to practices that have a “disparate impact” on protected groups, such as racial minorities. A party can prevail on a disparate impact claim, without specific proof of discriminatory intent, by proving that housing practices are causing unjustified discriminatory effects. The federal courts of appeals have unanimously upheld the availability of disparate impact liability under the Fair Housing Act, and such claims often succeed in rooting out entrenched discrimination.

Attorneys General Schneiderman and Coakley jointly submitted the brief in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. In this housing discrimination case, the district court held that The Inclusive Communities Project had proven a low income housing tax credits program resulted in a disparate impact on African-American residents in violation of the Fair Housing Act.

“The United States Congress passed the Fair Housing Act specifically to bring an end to residential segregation in America. Despite the progress we have made over the past several decades, we continue to see significant racial segregation in housing today. For that reason, we need every tool in our arsenal to achieve the goals of integration and equal opportunity for all,” Attorney General Eric Schneiderman said. “The protections of the Fair Housing Act are no less important today than they were when the law was passed 46 years ago. They help us ensure access to housing for protected groups. We urge the court to reject this challenge to an important civil rights law.”

The amicus brief argues that “[r]ecognition of disparate impact claims under the FHA [Fair Housing Act] not only is consistent with the text and structure of the statute, it is necessary to achieve the broad remedial goals of the statute.”  The brief explains: “The disparate impact model originated as a judicial response to the practical challenges of detecting and proving bias in cases of hidden and covert discrimination, and it continues to serve this essential function today.”  The brief further explains that “[w]ithout disparate impact claims, States and others will be left with fewer critical tools for combating the kinds of systemic discrimination that the FHA was intended to address.”

New York and Massachusetts led the filing of the amicus brief, joined by 15 other states, Arizona, California, Connecticut, Hawaii, Illinois, Minnesota, Missouri, New Hampshire, New Mexico, North Carolina, Oregon, Utah, Vermont, Virginia, and Washington. The brief is available here.  

The availability of a disparate impact cause of action under the Fair Housing Act remains a vital tool for tackling the wide spectrum of problems faced by protected groups under the Fair Housing Act. According to recent census data, housing segregation remains a persistent problem. Today’s brief provides examples of the kinds of existing and intractable segregation and discrimination that Congress sought to uproot through the Fair Housing Act.  

Every federal appeals court that has considered the question now before the Supreme Court has, consistent with the position of the joint states’ brief, held that the Fair Housing Act allows housing discrimination claims to be based on a showing of disparate impact. The U.S. Department of Housing and Urban Development has also taken this position.

The Supreme Court is scheduled to hear arguments in the case on Wednesday, January 21, 2015.

This matter was handled by New York Solicitor General Barbara D. Underwood, Special Counsel to the Solicitor General Cecelia C. Chang, Civil Rights Bureau Chief Kristen Clarke, and Assistant Solicitor General Matthew W. Grieco, with the assistance of Assistant Attorney General Mayur Saxena.

The Attorney General’s Office is committed to enforcement of the Fair Housing Act and combatting ongoing housing discrimination. To file a complaint, contact the Office at or 212-416-8250.