Just yesterday the Respondents in the Mount Holly Gardens housing discrimination case pending in the U.S. Supreme Court filed their brief explaining why disparate impact claims are indeed viable under the federal Fair Housing Act (FHA). In short, the residents argue that the FHA forbids both intentional housing discrimination (disparate treatment) and acts which have a discriminatory effect (disparate impact). In support of their view, the Respondents note that the “plain language” of the statute (as well as its history and purpose) encompasses an action’s effect, not just the actor’s motivation. Next, the brief states that essentially every court which has considered the issue has indeed concluded that disparate impact is covered under current law and that, in fact, Congress rebuffed prior attempts to eliminate disparate impact claims under the FHA. Additionally, the brief contends that HUD’s regulations issued earlier this year (and which contain the disparate impact standard) are entitled to deference by reviewing courts.
To be sure, as I wrote last month, rumors continue that the parties are close to settling the case. A settlement would more than likely moot the Supreme Court review. As of now, however, the case is scheduled for oral argument before the justices on December 4, 2013.
I try to keep politics out of the Fair Housing Defense Blog. Nothing good can come of it. This is not a liberal or a conservative site. Remember, just two years ago the city of St. Paul, MN settled a disparate impact case involving rental housing issues after the Supreme Court had accepted this same legal issue for review. Media reports speculated that the Justice Department was involved in convincing the city to settle because some were concerned how the Supreme Court would rule. From my seat, however, I would like the Supreme Court to rule on a FHA case – one way or the other – to provide guidance on a question and issue of law which will continue to come up. And which is important to those of us in the professional apartment management industry.
Just A Thought.