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The Supreme Court Upholds Fair Housing Act

The U.S. Supreme Court upheld a long-standing safeguard for fairness in federal fair housing law, a decision AARP had urged.


In Texas v. ICP, the Court found that the Fair Housing Act (FHA) not only prohibits intentional acts of discrimination, but also housing practices that have an unjustified discriminatory effect. In preserving the discriminatory effects standard — also known as “disparate impact” — the Court upheld four decades of judicial precedent from 11 appellate courts across the country.

This issue has come before the Supreme Court twice before, signaling the importance of and the review of the disparate impact standard to the Court. In 2013, AARP Foundation Litigation (AFL) represented low income minority homeowners in Mt. Holly v. Mt. Holly Citizens in Action; previously AFL filed AARP’s friend-of-the-court brief in Magner v. Gallagher. Both cases settled shortly before the Supreme Court heard oral arguments.

In 2008, the Inclusive Communities Project (ICP) filed a lawsuit against the Texas Department of Housing and Community Affairs (TDHCA), arguing that in allocating tax credits for lower-income housing in the Dallas area, the agency was disproportionately granting them in traditionally minority areas and disproportionately denying them in traditionally white areas and that this violated the FHA. The trial court found that ICP had proved the perpetuation of racial segregation disparate impact claim and ordered TDHCA to come up with a remedial plan. An individual housing developer intervened in the case after the remedial plan was developed and the appeal to the Supreme Court became solely about the type of claim brought under the FHA.

In this case, AARP and seven other civil rights organizations filed a brief noting that in 1988, Congress passed the federal Fair Housing Amendments Act (FHAA), a pivotal statute that enhanced prohibitions against discrimination in rental and sale of housing to people based on race, religion and ethnicity, and which for the first time included disability and family status as protected classes. AARP’s brief argued that in passing the FHAA, Congress both sought to extend its commitment to full community integration of persons with disabilities and reinforced its goal to remedy the discriminatory effects of policies and conduct — including addressing actions resulting from stereotypes and misapprehensions, not just  discriminatory intent.   

The Supreme Court upheld use of the disparate impact test, acknowledging the FHA’s “continuing role in moving the nation to a more integrated society.” In doing so it relied on the statutory language and history of the FHA, as well as looking to two other anti-discrimination statutes, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, which the Court found provided “essential background and instruction.”

What’s at Stake

People 50 plus are particularly affected by zoning, land use, rental, and housing-related tax policies that restrict access to housing. For example restrictions on tenancy can affect ability to have in-home caregivers, and limitations on availability of lower income housing can affect older people on limited or restricted incomes. Often these restrictions are based on stated principles that may not be discriminatory, but the effect at the end is the same. Cases such as these are critical in allowing people to age in place in their communities through a choice of suitable housing options.

Case Status

Texas DHCA v. Inclusive Communities was decided by the U.S. Supreme Court.