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19 N.Y.U. J. Legis. & Pub. Pol'y 685 (2016)
Proving Disparate Impact in Fair Housing Cases after Inclusive Communities

handle is hein.journals/nyulpp19 and id is 709 raw text is: PROVING DISPARATE IMPACT IN FAIR HOUSING CASES AFTER INCLUSIVE COMMUNITIES Robert G. Schwemm & Calvin Bradford* Disparate-impact claims under the federal Fair Housing Act (FHA) are now a well-established part of housing discrimination law, having been recognized for decades by the lower courts and recently endorsed by the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. The Court in Inclusive Communities saw the impact theory as a way of bolstering the FHA's role in moving the Nation toward a more integrated society, but it also set forth certain cau- tionary standards to guard against abusive impact claims. Under these standards, which are similar to those adopted in a 2013 HUD regulation and those long used in Title VII employment discrimination cases, a FHA- impact plaintiff must prove that a defendant's challenged policy causes a disparate impact on a racial minority or other FHA-protected group, and then, if the defendant establishes a legitimate interest for its policy, the plaintiff may still prevail by showing that a less discriminatory alternative would serve this interest. In the first stage, Inclusive Communities instructs courts to examine with care the plaintif's proof in order to facilitate the prompt resolu- tion of FHA -impact claims before trial. But, apart from the analogy to Title VII, neither Inclusive Communities nor HUD has provided any gui- dance for determining what such evidence should entail. Furthermore, lower-court decisions in FHA-impact cases before Inclusive Communities rarely followed the Title VII methodology and often used inconsistent tech- niques in evaluating the relevant data. This Article provides the guidance needed for evaluating a plaintiffs proof in this crucial prima-facie-case stage of a FHA-impact claim. The Article first reviews the law governing proof in disparate-impact cases and identifies the data sets available to establish disparate impact in FHA cases. It then shows how these legal principles and available data should be used in the most frequently pursued types of FHA-impact claims, i.e., those involving a landlord's screening devices and those challenging a municipality's restrictions on affordable housing. Implicit throughout the discussion are two themes: (1) that certain ap- proaches to proving disparate impact in FHA cases are problematic; and * Robert G. Schwemm is the Ashland-Spears Distinguished Research Professor at the University of Kentucky College of Law. Calvin Bradford is a private consultant who has provided expert testimony on statistical matters in over sixty fair housing cases (examples are cited infra notes 57, 131, 190, and 199). We thank Steve Dane and Joe Rich for their thoughtful comments on an earlier draft of this article. 685 Imaged with Permission of N.Y.U. Journal of Legislation and Public Policy

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