The retirement of Supreme Court Justice Anthony Kennedy introduces the possibility that a future court will overturn the doctrine of disparate impact central to fair housing practices and policies.
"Justice Anthony Kennedy wrote the most important decision on fair housing in a generation," writes Kriston Capps, referring to the 5-4 decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project that established the disparate impact doctrine and "confirmed that the Fair Housing Act of 1968 bans both explicit discrimination and implicit discrimination."
By deciding to retire, Justice Kennedy has also introduced the possibility that disparate impact will be struck down by the court in the relatively near-term future. The Trump Administration, led by President Trump and Department of Housing and Urban Development Secretary Ben Carson, are already working to undermine fair housing policies and programs.
Three years after that landmark decision, after the election of Trump, HUD is taking steps to undermine the rule at the core of Kennedy’s decision in Inclusive Communities. The department’s announcement that it will reopen its disparate-impact rule comes at a time when HUD faces a rash of lawsuits for failing to enforce another civil-rights standard, the Affirmatively Furthering Fair Housing rule. (The department has declined to discuss these cases.)
Capps lists more examples of the Trump Administration "back-pedaling on fair housing law" in the article, but all of these actions set the stage for a legal showdown that could force the Kennedy-less Supreme Court to decide, again, on disparate impact.
If Carson decides to soften or scrap the disparate-impact rule, legal challenges will almost certainly follow. Other cases may offer the Supreme Court the opportunity to revisit the issue. If and when that happens, it might very well be to strike down the disparate-impact reading. Kennedy’s retirement opens the way for a Trump-appointed justice likely to join the court’s conservatives in arguing that the Fair Housing Act bars explicit racial discrimination only—opening up a world of discriminatory practices in lending, zoning, selling, and renting.
Read the full story: What Justice Kennedy’s Retirement Could Mean for Fair Housing
HUD Plans to Kill Key Fair Housing Rule
The department issued a proposal to eliminate the disparate impact rule, a cornerstone of some discrimination rulings under the Fair Housing Act.
HUD Plans to Revive Fair Housing Rule
The department is proposing an updated version of the Affirmatively Furthering Fair Housing rule, which requires local governments to take action to end residential segregation.
Ben Carson’s Clear Disdain for Fair and Affordable Housing
Carson has spent much of his time as HUD secretary attacking the housing programs, initiatives, and regulations central to the agency’s mission.
Desperate measures: Advocates weigh draining Lake Powell to fill Colorado River
Draining the reservoir could reduce evaporation losses by a couple hundred thousand acre-feet.
Eastern Nebraska is running out of electricity
Data centers and electrification are straining eastern Nebraska’s grid, throttling economic development.
Move over, LA: St. Louis gears up for Olympics, invests millions in downtown redevelopment
The Missouri city will host the 2028 Olympic soccer group stage and knockout matches.
Mass. votes against statewide minimum lot size for single-family homes
Over 2 million residents voted on Question 7; it was decided by just over 30,000 votes.
Maryland’s $15 billion bridge project gains key approval
The Maryland Transit Authority said the project will create over 60,000 jobs and add $23 billion to the local economy.
‘No clear next steps’ for Chicago's permanent festival grounds
Eleventh Ward Ald. Nicole Lee has suggested Soldier Field as a possible location for the permanent event space.
FREE Course: Walkable City 1: Why Walkability?
After describing his path towards focusing on walkability as the essence of good planning, Jeff Speck marches through his five principal reasons for making more walkable places.
Reinventing Malls: Planning Alchemy—Turning Gray Fields Into Gold
The course focuses on the opportunities and imperatives that shape reinvention of mall sites.
City of Rosemead
Rutgers University, Edward J. Bloustein School of Planning and Public Policy
One Hundred Miles
University of Michigan School for Environment and Sustainability (SEAS)
Hunter College, City University of New York (CUNY)
The Architects Foundation
City of Cambridge
Montrose County
The Pocatello Development Authority