SCOTUS Cites Brief Co-Authored by Prof. Myron Orfield in Fair Housing Ruling

June 26, 2015

In a decision issued yesterday in the case of Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, the U.S. Supreme Court affirmed the availability of a “disparate impact” cause of action arising under the Fair Housing Act (FHA). In writing the opinion for the 5-4 majority, Justice Anthony Kennedy cited a brief written by Professor Myron Orfield and other housing scholars; the brief described the history of housing segregation in the United States that led to the passage of the FHA in 1968. Orfield and the Law School’s Institute on Metropolitan Opportunity, of which he is the director, were involved in the case from its inception, preparing and analyzing data and doing legal research for the plaintiff, the nonprofit Inclusive Communities Project of Texas.

The phrase “disparate impact” refers to claims opposing housing policies that are not intentionally discriminatory but have the effect of disproportionately harming minorities and other protected groups. Such claims have been an important tool of the federal government and civil rights groups for more than four decades. Lower courts have repeatedly said that the FHA permits disparate impact claims, but the Supreme Court had not previously taken up the question.

“This is going to open up this issue all over the country,” Orfield told the Washington Post. “The things that are happening in Texas are happening in every city in the United States. They’re all evading civil rights law by concentrating affordable housing in segregated neighborhoods, thus perpetuating segregation—which Justice Kennedy [has now] said they cannot do.”

To read the brief, click here.

To read the opinion by Justice Kennedy, as well as dissents by Justices Samuel Alito and Clarence Thomas, click here.

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