Disparate Impact Theory Goes to Washington

Disparate impact theory, which looks to results of allegedly discriminatory practices as well as the parties' intent, has been upheld by a variety of federal appeals courts as a valid way to prove housing discrimination. See e.g., Huntington Branch, NAAC v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988).  However, until now, the Supreme Court has been notably silent about disparate impact theory. Two years ago, the Court was poised to hear arguments that a St. Paul, Minn. policy regarding low-cost rentals disproportionately affected minority residents and violated the Fair Housing Act before the city withdrew its appeal and the issue of disparate impact was sidestepped. However, SCOTUS recently agreed to hear the case of a group of African American and Hispanic residents of a Mount Holly, N.J. neighborhood that is set to be bulldozed to make way for a redevelopment project. See Twp. of Mount Holly v. Mount Holly Gardens Citizens in Action, Sup. Ct. Docket No. 11-1507. The neighborhood's residents claim that the redevelopment plan is discriminatory because it targets a predominately minority area and disproportionately affects minorities. While the Third Circuit Court of Appeals held that the community group had presented a triable claim of disparate impact, the Supreme Court will decide whether plaintiffs must prove that they were the target of intentional housing discrimination to prevail in a federal lawsuit. See Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375 (3d Cir. 2011). The case is set to be heard by the nation's highest court in the fall and, as that date approaches, all fair housing eyes turn toward the nine justices and their long-awaited consideration of disparate impact theory.

Bulldozer tearing up houses in Mount Holly Gardens.
Photo Credit: Kent Pipes (via Huffington Post)