Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/62

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

Alito, J., dissenting

which the 1964 Civil Rights Act took effect. Id., at 427. Once that date arrived, the company imposed new educational requirements for those wishing to transfer into jobs that were then being performed by white workers who did not meet those requirements. Id., at 427–428. These new hurdles disproportionately burdened African-Americans, who had "long received inferior education in segregated schools." Id., at 430. Despite all this, the lower courts found that the company lacked discriminatory intent. See id., at 428. By convention, we do not overturn a finding of fact accepted by two lower courts, see, e.g., Rogers v. Lodge, 458 U. S. 613, 623 (1982); Blau v. Lehman, 368 U. S. 403, 408–409 (1962); Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949), so the Court was confronted with the question whether Title VII always demands intentional discrimination.

Although Griggs involved a question of statutory interpretation, the body of the Court’s opinion—quite remarkably—does not even cite the provision of Title VII on which the plaintiffs’ claims were based. The only reference to §703(a)(2) of the 1964 Civil Rights Act appears in a single footnote that reproduces the statutory text but makes no effort to explain how it encompasses a disparate-impact claim. See 401 U. S., at 426, n. 1. Instead, the Court based its decision on the "objective" of Title VII, which the Court described as "achiev[ing] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of white employees over other employees." Id., at 429–430.

That text-free reasoning caused confusion, see, e.g., Smith, supra, at 261–262 (O’Connor, J., concurring in judgment), and undoubtedly led to the pattern of Court of Appeals decisions in FHA cases upon which the majority now relies. Those lower courts, like the Griggs Court, often made little effort to ground their decisions in the statutory text. For example, in one of the earliest cases in