Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/69

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Cite as: 576 U. S. ____ (2015)

Alito, J., dissenting

textually "closely connected" second clause. Id., at 143. This was so, the Court thought, even though the second clause, standing alone, may very well have required discriminatory "intent." Id., at 139. The Court explained that the Act's "less than careful draftsmanship" regarding the relationship between the clauses made the "wording of the statute . . . ambiguous" about teacher assignments, thus forcing the Court to "look closely at the structure and context of the statute and to review its legislative history." Id., at 138–140. It was the combined force of all those markers that persuaded the Court that disparate impact applied to the second clause too.

Harris, in other words, has nothing to do with §805(a) of the FHA. The "wording" is different; the "structure" is different; the “context” is different; and the "legislative history" is different. Id., at 140. Rather than digging up a 36-year-old case that Justices of this Court have cited all of twice, and never once for the proposition offered today, the Court would do well to recall our many cases explaining what the phase "because of" means.


Not only is the decision of the Court inconsistent with what the FHA says and our precedents, it will have unfortunate consequences. Disparate-impact liability has very different implications in housing and employment cases.

Disparate impact puts housing authorities in a very difficult position because programs that are designed and implemented to help the poor can provide the grounds for a disparate-impact claim. As Magner shows, when disparate impact is on the table, even a city’s good-faith attempt to remedy deplorable housing conditions can be branded "discriminatory." 619 F. 3d, at 834. disparate-impact claims thus threaten "a whole range of tax, welfare, public service, regulatory, and licensing statutes." Washington v. Davis, 426 U. S. 229, 248 (1976).