Bench Memos

An Observation after the Disparate-Impact Oral Argument Today

An issue at the oral argument today in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project involved three brief, scattered provisos in the 1988 amendments to the Fair Housing Act:

‐Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

Nothing in this title prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).

Nothing in this title prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.

The claim is that there would be no reason for these provisos unless the Act generally allowed disparate-impact causes of action. Of course, it is not particularly surprising or damning that there should be some redundancy in a long statute like this. Legislation is not poetry, and lobbyists are paid to put in suspenders even if a belt might do. 

But it is also worth noting that all three provisos involve instances where non-protected characteristics are close enough to protected characteristics that Congress wanted to spell out what was and wasn’t protected a bit more — particularly since Congress was adding “familial status” and “handicap” to the statute at that very time.

To elaborate: The 1988 amendments expanded the Act to cover not just race, etc. but also “familial status” — that is, to make it illegal to discriminate against families with children. But an occupancy limit on, say, an apartment obviously appears on its face to get close to that line.

Another sort of discrimination prohibited by the 1988 amendments was against the handicapped. Those with a record of drug addiction are considered to fall into this category (so long as it is not “current, illegal drug use . . . or addiction”). So here Congress would have been aware that discrimination against someone because of their record of drug crimes gets close to the line of handicap discrimination. The war on drugs was well under way, and no doubt our legislators wanted to make sure no one could claim their bill was soft on drug traffickers.

As for real-estate appraisals, bear in mind again that disability and familial status had just been added to the statute. Designing (or redesigning) property so that it is accessible to the handicapped can affect its value; changing a building so that it is kid-friendly can, too. What’s more, in both instances the result might be a building that is more expensive to construct but less desirable to the large class of individuals who aren’t being accommodated (the able-bodied, and singles or couples). Either way, Congress did not want real-estate appraisers to be held liable for market pricing that was not their doing.

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