The Supreme Court's recent Texas Department of Housing and Community Affairs v. The Inclusive Communities Project decision makes clear the broad point that the Fair Housing Act allows causes of action based on disparate impact claims rooted in statistical evidence. More specifically, however, the Court held that “[d]isparate-impact liability mandates only the removal of artificial, arbitrary, and unnecessary barriers” and that it is “not an instrument to force housing authorities to reorder their priorities.”
Consequently, what the decision means at a practical level remains anything but clear. Indeed, as William Consovoy observes at SCOTUSblog (here) "to defeat a disparate impact claim, housing authorities need only bring forth a 'valid interest served by their policies.' Furthermore, 'a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.' Indeed, the Court sent a strong signal that the disparate impact claim that gave rise to this dispute will have a difficult time moving forward under this standard."