Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/72

This page has been validated.

Alito, J., dissenting

impact lawsuit if the objective is "legitimate"? That is certainly not the view of the Government, which takes the position that a disparate-impact claim may be brought to challenge actions taken with such worthy objectives as improving housing in poor neighborhoods and making financially sound lending decisions. See Brief for United States as Amicus Curiae 30, n. 7.

Because HUD’s regulations and the Court’s pronouncements are so "hazy," Central Bank, 511 U. S., at 188–189, courts—lacking expertise in the field of housing policy—may inadvertently harm the very people that the FHA is meant to help. Local governments make countless decisions that may have some disparate impact related to housing. See ante, at 19–20. Certainly Congress did not intend to “engage the federal courts in an endless exercise of second-guessing” local programs. Canton v. Harris, 489 U. S. 378, 392 (1989).

Even if a city or private entity named in a disparate-impact suit believes that it is likely to prevail if a disparate-impact suit is fully litigated, the costs of litigation, including the expense of discovery and experts, may "push cost-conscious defendants to settle even anemic cases." Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 559 (2007). Defendants may feel compelled to “abandon substantial defenses and . . . pay settlements in order to avoid the expense and risk of going to trial." Central Bank, supra, at 189. And parties fearful of disparate-impact claims may let race drive their decisionmaking in hopes of avoiding litigation altogether. Cf. Ricci, 557 U. S., at 563. All the while, similar dynamics may drive litigation against private actors. Ante, at 19.

This is not the Fair Housing Act that Congress enacted.


Against all of this, the Court offers several additional counterarguments. None is persuasive.