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Introduction..........................391
I. Inclusive Communities and the New Disparate Impact Test... .... 393
A. Facts of Inclusive Communities................393
B. Court Proceedings.3....................................94
II. The Making of the New Disparate Impact Framework.............................398
A. Two Types of Disparate Impact Cases Prior to Inclusive Communities.............................. 399
1. Disparate Impact Liability in Housing Barrier Cases.............................. 400
2. Disparate Impact Liability in Housing Improvement Cases.............................402
B. Justice Kennedy on Integration, Revitalization, and the FHA..............................403
C. Inclusive Communities and the Conflict Between Integration and Revitalization.............................. 407
D. Fashioning of the New Disparate Impact Framework. .............................409
1. Plaintiff's Prima Facie Case.............................. 409
2. Defendant's Rebuttal. .............................412
3. Plaintiffs' Defense. .............................414
III. Disparate Impact Litigation After Inclusive Communities.... .............................414
A. Revitalization and Integration as Poverty Alleviation Strategies. .............................414
B. Effects of Inclusive Communities on Revitalization and Integration Strategies. .............................416
Conclusion.............................420
Introduction
In 2015, the Supreme Court held in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. that the Fair Housing Act (FHA) encompassed disparate impact liability.1 The decision followed in the wake of a series of cases, including Parents Involved in Community Schools v. Seattle School District No. I2 and Ricci v. DeStefano,3 that had severely restricted "minority-protective" judicial review of state action.4 Given this background, when the Inclusive Communities decision was handed down, it was hailed as a surprising and decisive victory for advocates of civil rights and residential integration and as a decisive defeat for private developers in the housing market.5
This article argues that the exuberance with which the Inclusive Communities decision has been greeted is premature. The majority opinion, written by Justice Kennedy, affirms that the FHA encompasses disparate impact liability for public and private actors, but it tightly constrains that liability. Disparate impact claims under the FHA have been an effective tool for curbing actions by developers and housing authorities that had sustained and perpetuated residential segregation. This article argues that, confronted with an unfamiliar type of disparate impact claim in Inclusive Communities, Justice Kennedy fashioned a framework for evaluating such claims that will make it more difficult to challenge policies that perpetuate segregation in the future. In trying to preserve disparate impact liability for policies that perpetuate segregation while limiting liability for policies that aim to revitalize poor communities, Justice Kennedy constructed a framework that...