Fair Housing Defense blog readers know we have been following the Mount Holly Gardens case now pending before the U.S. Supreme Court.  This is the case in which the Supreme Court is poised to decide if “disparate impact” claims are cognizable under the Fair Housing Act (FHA) as currently drafted.  HUD and many courts have long taken the position that “disparate impact” is encompassed in the statute.  This case challenges that belief and will test how the law is to be interpreted going forward.

On August 26, 2013, the Petitioners filed their opening brief with the Supreme Court.  In sum, the Petitioners contend that:  (1) under the ordinary meaning of the specific FHA provision, intentional discrimination – and not only disparate impact – is required to establish a violation of the law; and (2) because the HUD rule permitting such claims “cannot be reconciled” with the plain language in the statute, it must be struck down.  The argument essentially is that if Congress intended for “disparate impact” to be covered, it would have included those words in the text of the law, as Congress has done with other statutes.  And if that is indeed the case, it necessarily follows that HUD regulations on this point  – which are to be tailored to comport with the FHA – are not entitled to deference and similarly must fail.

The Respondents brief is due October 21, 2013.  I will be sure to report on it as well.

Just A Thought.