At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate-impact liability has faced a direct constitutional threat. This Article argues that the Court’s decision last Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate-impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this Article argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case—which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate-impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this Article is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The Article argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represents the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.