Did We Dodge a Bullet? Potential Mount Holly Settlement May Mean Disparate Impact Claims Escape High Court’s Review (For Now)

 

By Jessica Horne, George Washington University Law School Pathways to Practice Fellow

 

Civil rights leaders are breathing tentative sighs of relief today as news breaks of a possible settlement in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. Many think a settlement averts potential disaster.

The Township asked the U.S. Supreme Court to hold that a claim of disparate impact discrimination—which does not require courts to divine the defendant’s discriminatory intent—is not available under the Fair Housing Act. Some would say its chances were good.  Considering recent decisions interpreting civil rights statutes, one might think that the Roberts Court’s mission is to neuter what historically have been the most powerful weapons for combating discrimination. See, for example, Vance v. Ball State University, which narrows the circumstances in which a victim of sexual harassment in the workplace can sue his or her employer, and Shelby County v. Holder, which all but annihilated the Voting Rights Act of 1965, the crown jewel of the civil rights era.

For 38 years, 11 circuit courts of appeal accepted disparate impact claims under the FHA.  So erasing Mount Holly from the Supreme Court’s docket means that victims of housing discrimination can continue to raise disparate impact claims to vindicate their rights. Otherwise, as Public Justice and various other organizations argue in an amici brief, gentrification efforts that oust minority residents from their neighborhoods, discriminatory lending practices like those that led to the subprime mortgage crisis, and policies that operate to evict victims of domestic and sexual violence could continue, virtually unassailable under the law.

Of course, even if Mount Holly is resolved without Supreme Court review, it is possible, and perhaps likely, that the issue will reach the Court sometime soon. In fact, the issue was due for Supreme Court resolution last year in Magner v. Gallagher, but the parties there also reached an agreement and withdrew the case before oral argument.

So, in some (admittedly hyperbolic) sense, the dismissal of a Supreme Court case that was likely to produce unfavorable law feels like the near-miss of an asteroid that was barreling toward Earth. We’re relieved, but we know that one day it’s coming.

We also, though, have more time to prepare, to soften the blow or perhaps prevent it altogether. In terms of whether the FHA contemplates disparate impact claims, between Magner and Mount Holly, for example, the Department of Housing and Urban Development issued a regulation explicitly interpreting the FHA as authorizing disparate impact claims. This development could influence the Supreme Court’s decision because courts owe deference to such interpretations.

Another reason why buying time is important is that time allows activists to spread awareness of the threat and social movements to coalesce. After all, would the Supreme Court have invalidated the Defense of Marriage Act if U.S. v. Windsor had arrived five years earlier? Although preserving disparate impact claims under the FHA might lack the same, well, sex appeal as marriage equality, it holds similar value to civil rights protection and warrants similar attention among those of us who want social progress.