In Defense of Disparate Impact: Urban Redevelopment and the Supreme Court’s Recent Interest in the Fair Housing Act

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of the Civil Rights legislation of the 1960s. The sole issue in both of the recently settled Fair Housing Act cases was whether disparate impact analysis – a type of analysis that some on the Supreme Court may view as requiring racial preferences – is valid under the Fair Housing Act. This Article argues that in order to have a chance at achieving the goal of its sponsors – “to replace the ghettos [with] truly integrated and balanced living patterns,” – the Fair Housing Act cannot just take aim at the aberrant individual who intentionally denies a person housing because of his or her race.

Instead, the Fair Housing Act must recognize claims based on disparate impact analysis alone. This Article posits that disparate impact analysis is particularly critical in the context of urban redevelopment decisions because such decisions are often made through a multi-party protracted process, in which a discriminatory intent may be impossible to discern or entirely absent. It is the outcome of large-scale urban redevelopment projects, not individual decisions to rent or sell, that will truly shape racial housing patterns in the twenty-first century.