“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
An important principle recognized by the Supreme Court is that the federal Fair Housing Act (FHA) prohibits rental or other housing practices that have an improper disparate impact on racial and other minorities. But Fifth Circuit Trump judge Kurt Engelhardt was the author and deciding vote in a 2-1 decision in Inclusive Communities Project v. Lincoln Property Co. in April 2019 that threatens to significantly undermine such discriminatory impact liability. As Reagan appointee Eugene Davis wrote in dissent, Engelhardt’s opinion creates new requirements for victims of discriminatory housing that are “simply not found in any controlling precedent” and “threatens to eviscerate disparate impact claims under the FHA altogether.”
The Inclusive Communities Project (ICP) is a fair housing group that works to decrease racial segregation in housing and expand housing opportunities for Black, brown and low-income communities in the Dallas area. As part of its work, it filed a lawsuit against Lincoln Property Company which, among other claims, challenged practices at several Lincoln-owned apartment complexes that prohibit apartment applicants from using vouchers from government agencies to help pay rent. This practice, ICP alleged, had a disparate impact on Black renters, since the group of renters who use vouchers is “over 80% Black and 10% or less White.”
A federal district court dismissed ICP’s claim as a matter of law with no opportunity to prove its claims, however, and Engelhardt’s 2-1 decision affirmed that ruling. According to Engelhardt, in order to establish disparate impact liability, ICP would have to allege and prove that Lincoln was somehow “responsible for the fact that Black renters in Dallas hold a disproportionate number of vouchers” or that the “no vouchers” policy was “previously unenforced.”
Judge Davis strongly disagreed. The majority’s holding was based on a “strained reading” of a recent Supreme Court decision on the subject, he explained, and there was “no precedent” for it. Indeed, he noted, the requirement of proof that Lincoln’s policy had somehow caused the disparate impact was apparently based on a dissent in a recent court of appeals decision and would render FHA disparate impact liability “a dead letter.”
Davis specifically noted that other courts had found that such “no vouchers” policies had “a disproportionate impact on Black persons in violation of the FHA,” and that ICP should have the opportunity to prove that as well. As a result of Engelhardt’s ruling, however, ICP and other fair housing plaintiffs will not have that opportunity in the Fifth Circuit.