Today, the U.S. Supreme Court agreed for the third time in recent history to decide whether disparate impact claims are cognizable under the Fair Housing Act (FHA). The Supreme Court granted the Texas Department of Housing and Community Affairs' (Texas DHCA) petition for writ of certiorari, which was filed earlier this year after the Fifth Circuit recognized the disparate impact theory in a claim alleging that the disproportionate denial of low-income housing tax credits in nonminority, affluent neighborhoods was discriminatory. A summary of the proceedings can be found in our alert “Disparate Impact to Supreme Court Again?” from June 2, 2014.

The Texas DHCA will now file a merits brief, and the respondent, the Inclusive Communities Project, will have an opportunity to respond. Nonparties with an interest in the litigation may also file amicus briefs. This is the third time since 2012 that the Supreme Court has agreed to hear a case presenting the issue of whether disparate impact claims are cognizable under the FHA. The two prior cases were both settled before oral argument. If the case follows the usual course, oral argument will most likely be held in early 2015, with a Supreme Court decision by the end of June.

Ballard Spahr's Housing Group is nationally recognized for its leadership in the development and financing of housing, community development, energy, public/private partnerships, and transportation projects. The firm's Consumer Financial Services Group has created a Fair Lending Task Force that brings together regulatory attorneys who deal with fair lending law compliance (including the preparation of fair lending assessments in advance of Consumer Financial Protection Bureau examinations), litigators who defend against claims of fair lending violations, and attorneys who understand the statistical analyses that underlie fair lending assessments and discrimination claims.

For more information, please contact Fair Lending Task Force Leader Christopher J. Willis at 678.420.9436 or willisc@ballardspahr.com or John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com.


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