Bench Memos

The Supreme Court Takes the Mt. Holly Case

The Center for Equal Opportunity and the Pacific Legal Foundation had urged the Court to grant review in this case, as discussed here, and we’re glad that the Court did so today. It presents the issue — never resolved by the Court — whether a “disparate impact” cause of action may be filed under the Fair Housing Act. 

Such a cause of action alleges “discrimination” based on statistical imbalances, notwithstanding the fact that the challenged practice is nondiscriminatory by its terms, in its intent, and in its application. So, for example, the refusal to rent to convicted felons, or to sell homes to people with poor work histories, or to rent or sell to people with bad credit ratings all can be challenged if there is a disproportionate effect on this or that group, and then the defendant must prove some degree of “necessity” for the practice. The Obama administration loves this approach, but here’s hoping the Court nixes it.

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