Title: Disparate Impact and the Limits of Local Discretion after <I>Inclusive Communities</I>
Abstract: In upholding the disparate impact theory of liability under the Fair Housing Act (FHA), the Court simultaneously made sweeping pronouncements in favor of residential integration and issued safeguards protecting the legitimate exercise of local discretion in the area of housing policy. Some commentators see these pronouncements as irreconcilable. This Article harmonizes the Court’s competing pronouncements using history, precedent, and the Inclusive Communities opinion itself. The Court eases the tension between federal mandates and local prerogatives by articulating a vision of FHA disparate impact liability as a targeted “barrier removal” mechanism rather than a blunt instrument “displac[ing] valid governmental and private priorities.” As I have explored in earlier work, this is the vision largely implemented by the lower courts for forty years. Justice Kennedy cited this work in acknowledging that “the heartland of disparate-impact suits target[s] artificial barriers to housing.”
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
Indexed In: ['crossref']
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