Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. (13-1371)

argument 13-1371

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.

Supreme Court of the United States 59 min 7 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s central question about the Fair Housing Act’s “make unavailable” language?

John G. Roberts 0:00

We'll hear argument first this morning in case thirteen thirteen seventy one. The Texas Department of Housing and Community Affairs versus the inclusive communities project. Mr. Keller?

Unknown 0:13

Thank you, Mr. Chief Justice, and may it please the court. The Fair Housing Act does not recognize disparate impact claims. First, because its plain text doesn't use effects or results based language. And when a statute prohibits actions taken because of race and it lacks effects based language. The statute is limited to intentional discrimination. And second The canon of constitutional avoidance compels this interpretation. Most importantly, the Act doesn't use the phrase adversely effect. Smith versus City of Jackson recognize that this effects-based phrase

Elena Kagan 0:48

At the time of Smith and Greg, neither the Title Seven nor the ADEA. use the words disparate impact. and yet we recognise they apply. disparate impact.

Unknown 1:02

At the time, disparate im the words disparate impact were not used. However, the words adversely affect were used. And Watson subsequently interpreted Griggs Is finding the textual hook for disparate impact liability was based on the phrase adverse lesson.

Elena Kagan 1:18

Because it says to refuse to sell or rent, et cetera. uh or otherwise make unavailable and the agency charged with interpreting that language has determined that it means disparate impact.

Unknown 1:34

Justice Sotomayor, the the phrase make unavailable

Unknown 1:43

Well

Elena Kagan 1:44

it it it it happens to be because that's what you do with housing, but it's a consequence

Unknown 1:51

The act of making unavailable a dwelling to a person is the act prohibited by the Fair Housing Act. This isn't like Section four hundred eighty two of the ADA where Smith said disparate impact lied. This is like Section four eighty one. of the ADEA. Because the 804A prohibits the refusal to sell a rent, the refusal to negotiate, otherwise making unavailable or denying. All of those are active verbs and they're all acts prohibited. The work that is being done by otherwise make unavailable is to cover additional acts such as zoning decisions or land use restrictions that are not outright refusals or outright denials. And that's why the language of the Fair Housing Act focuses on actions, not up.

Antonin Scalia 2:33

But you could say the same thing about adversely effect. I mean that also is an active verb, right? And uh it also You had to adversely affect uh By discriminating. Uh

Ruth Bader Ginsburg 2:50

You know, I

Antonin Scalia 2:51

I I the points you make are are true enough, but they were also true uh Uh with with respect to

Unknown 2:56

Title Seven, weren't they? Justice Scalia, I don't believe so because Section four hundred eighty two and Section seven oh three A two ban the act of limiting, segregating and classifying. And then they checked for a certain result, something which would deprive, tend to deprive, or adversely affect. And it was that results or effects checking language that gave rise to disparate impact language. And

Ruth Bader Ginsburg 3:21

after that language is the phrase on the basis of race, sex, whatever. So it's adversely affect on the basis of the They're the game. Category.

Unknown 3:37

Well and that was the interpretation that the Smith plurality and concurrence came to on section four A two. But in section four A one the phrase because of race appears and you have active verbs there. You have refuse and otherwise discriminate. And the court was unanimous in finding that section four A one Only

Ruth Bader Ginsburg 4:01

Both Title VII and the Fair Housing Act are There was a grand goal that Congress had in mind. It meant to undo generations of rank discrimination and what was the phrase that this court used in Traffic Anti to describe the Fair Housing Act? That it its objective was to replace ghettos by integrating integrated living patterns. Justice Title Seven was meant to undo. a a legacy of rank employment discrimination. So d doesn't that purpose give a a clue to what Congress was after?

Unknown 4:45

Well Justice Ginsburg, the court needs to focus on the plain text and unlike Title Seven, which is passed in nineteen sixty four, and unlike the ADEA which was passed in nineteen sixty seven, both of which included the phrase adversely effect. In nineteen sixty eight, when Congress passed the Fair Housing Act, it didn't use that language.