The Township of Mount Holly, New Jersey has filed a petition for certiorari in the U.S. Supreme Court raising the issue of whether disparate impact claims are available under the Fair Housing Act (FHA). The issues raised in the Mount Holly petition are virtually a carbon-copy of those in Magner v. Gallagher, the case that would have decided the disparate impact issue but for the City of Saint Paul’s last-minute decision to dismiss its appeal. The Consumer
Financial Protection Bureau (CFPB), joined by HUD and the Department of Justice, has insisted that disparate impact claims are viable under the FHA and ECOA. If the Court agrees to hear the Mount Holly case, these agencies will have the opportunity to test their interpretations of these statutes against the plain text of the statutes themselves. It is predicted that the Supreme Court will find an absence of any plain-language support for disparate impact claims, and will not defer to the government’s views on this issue. This case will present yet another opportunity for HUD’s proposed disparate impact rule under the Fair Housing Act to interact with the Court’s decision on granting certiorari.
