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TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC.

Alito, J., dissenting

On the contrary, we have previously refused to interpret enactments like the 1988 safe-harbor provisions in such a way. Our decision in O'Gilvie v. United States, 519 U. S. 79 (1996)—also ignored by the Court today—is instructive. In that case, the question was whether a provision of the Internal Revenue Code excluding a recovery for personal injury from gross income applied to punitive damages. Well after the critical provision was enacted, Congress adopted an amendment providing that punitive damages for nonphysical injuries were not excluded. Pointing to this amendment, a taxpayer argued: "Why . . . would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment’s absence, punitive damages did fall within the provision's coverage?" Id., at 89. This argument, of course, is precisely the same as the argument made in this case. To paraphrase O'Gilvie, the Court today asks: Why would Congress have enacted the 1988 amendments, providing safe harbors from three types of disparate-impact claims, unless Congress believed

    which some courts have applied in disparate-treatment housing cases, see, e.g., 2922 Sherman Avenue Tenants' Assn. v. District of Columbia, 444 F. 3d 673, 682 (CADC 2006) (collecting cases), a defendant must proffer a legitimate reason for the challenged conduct, and the safeharbor provisions set out reasons that are necessarily legitimate. Moreover, while a factfinder in a disparate-treatment case can sometimes infer bad intent based on facially neutral conduct, these safe harbors protect against such inferences. Without more, conduct within a safe harbor is insufficient to support such an inference as a matter of law. And finally, even if there is additional evidence, these safe harbors make it harder to show pretext. See Fair Housing Advocates Assn., Inc. v. Richmond Heights#, 209 F. 3d 626, 636–637, and n. 7 (CA6 2000).
    Even if they were superfluous, moreover, our "preference for avoiding surplusage constructions is not absolute."
    Lamie v. United States Trustee, 540 U. S. 526, 536 (2004). We "presume that a legislature says in a statute what it means," notwithstanding "[r]edundanc[y]." Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992).