Fair Housing Litigation After Inclusive Communities: What's New and What's Not


On June 25, 2015, the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (Inclusive Communities or ICP) that parts of the federal Fair Housing Act (FHA) include a disparate-impact standard of liability. This standard allows liability without a showing of illegal intent and traces back to the Court’s 1971 decision in Griggs v. Duke Power Co., which endorsed impact-based claims under the federal employment discrimination law, Title VII of the Civil Rights Act of 1964.

The Court’s 5-4 decision in the ICP case endorsed forty years of practice under the FHA, during which the impact theory of liability had been adopted by all eleven federal appellate courts to consider the matter. This theory had also been adopted by various federal agencies, including the Department of Housing and Urban Development (HUD), the agency primarily responsible for enforcing the FHA.

In many ways, therefore, ICP will not greatly alter FHA-based litigation, although some elements of the decision are undeniably important. This Article provides a roadmap for post-ICP fair housing cases. Part I reviews the background of FHA-impact cases and the Supreme Court’s opinions in ICP. Part II discusses various types of FHA and related claims that will not be changed by the ICP decision. Finally, Part III examines those areas where ICP will influence future FHA cases, the key FHA issues that remain unresolved after ICP, and some likely post-ICP uses of the disparate-impact theory in FHA cases.

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Notes/Citation Information

Robert G. Schwemm, Fair Housing Litigation After Inclusive Communities: What's New and What's Not, 115 Columbia L. Rev. Sidebar 106 (2015), http://columbialawreview.org/content/fair-housing-litigation-after-inclusive-communities-whats-new-and-whats-not/