The Fair Housing Act was passed in 1968. In 1988, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability—one for appraisers, one for disparate impact against individuals with drug convictions, and one for reasonable maximum occupancy restrictions. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims.

Justice Scalia appears to echo Inclusive Communities’ arguments in questioning the Texas Solicitor General.