The Supreme Court has granted certiorari in disparate impact claims for the past three terms. In the previous two cases, progressive groups rallied to settle the cases to prevent a negative high court ruling. The current Supreme Court has been hostile to race-based claims and affirmative action, with many of the justices believing in a “color-blind Constitution” that does not allow the consideration of race in most circumstances—even to help those who have traditionally been subject to discrimination.
In this case, the State of Texas argued that the Court should find the Fair Housing Act does not include disparate impact claims to avoid lower courts having to consider difficult questions on race, a concept known as “constitutional avoidance.” Solicitor General Verrilli, in this exchange, disagreed. The remedies under the Fair Housing Act are race-neutral, and they protect minority groups from discrimination.