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Constitutional Law and Civil Rights

Third Time's the Charm? Supreme Court Agrees Again To Hear FHA Disparate Impact Case

By Michael W. Skojec, Sharon Wilson Géno, Bryan J. Harrison, Christopher J. Willis, John L. Culhane, Jr., and Peter N. Cubita

The U.S. Supreme Court has agreed for the third time in recent history to decide whether disparate impact claims are cognizable under the Fair Housing Act (FHA). The Supreme Court granted the Texas Department of Housing and Community Affairs' (Texas DHCA) petition for writ of certiorari, [enhanced version available to subscribers], which was filed earlier this year after the Fifth Circuit recognized the disparate impact theory, [enhanced version available to subscribers], in a claim alleging that the disproportionate denial of low-income housing tax credits in nonminority, affluent neighborhoods was discriminatory. A summary of the proceedings can be found in our alert “Disparate Impact to Supreme Court Again?” from June 2, 2014.

The Texas DHCA will now file a merits brief, and the respondent, the Inclusive Communities Project, will have an opportunity to respond. Nonparties with an interest in the litigation may also file amicus briefs. This is the third time since 2012 that the Supreme Court has agreed to hear a case presenting the issue of whether disparate impact claims are cognizable under the FHA. The two prior cases were both settled before oral argument. If the case follows the usual course, oral argument will most likely be held in early 2015, with a Supreme Court decision by the end of June.

Ballard Spahr's Housing Group is nationally recognized for its leadership in the development and financing of housing, community development, energy, public/private partnerships, and transportation projects. The firm's Consumer Financial Services Group has created a Fair Lending Task Force that brings together regulatory attorneys who deal with fair lending law compliance (including the preparation of fair lending assessments in advance of Consumer Financial Protection Bureau examinations), litigators who defend against claims of fair lending violations, and attorneys who understand the statistical analyses that underlie fair lending assessments and discrimination claims.

For more information, please contact Michael W. Skojec at 410.528.5541 or, Sharon Wilson Géno at 202.661.2218 or, Bryan J. Harrison at 410.528.5687 or, Fair Lending Task Force Leader Christopher J. Willis at 678.420.9436 or, John L. Culhane, Jr., at 215.864.8535 or, or Peter N. Cubita at 646.346.8004 or

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