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By Lisa Soronen

For the second time in two years, the parties have settled a dispute before the Supreme Court over whether the Fair Housing Act (FHA) allows plaintiffs to bring disparate impact claims. Under disparate impact, plaintiffs can sue if a policy or practice more significantly affects a class of people even if it does not intentionally discriminate against them.  Local governments across the country have been subject to these claims. 

The FHA makes it unlawful to refuse to sell or rent a property to any person because of race, color, religion, sex, familial status, or national origin. The question presented in Mount Holly Gardens Citizens in Action v. Township of Mount Holly, was whether a policy or action (here, a plan to redevelop a low-income minority neighborhood) that disproportionately affects a protected class of citizens without intentionally discriminating on the basis of race or other factors can give rise to an FHA claim.

All of the federal circuit courts have agreed that disparate impact claims can be brought under the FHA,, and this year the Department of Housing and Urban Development adopted final rules stating the same. USA Today reports that the financial services industry has vowed to find another case to bring to the Supreme Court—one that won’t settle. 

It is widely speculated that the current Supreme Court would hold that disparate impact claims cannot be brought under the FHA.  

The State and Local Legal Center did not file a brief in this case. International Municipal Lawyers Association filed a brief in this case on behalf of the Township.  

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on Supreme Court cases for the NCSL Blog.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.

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