Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/61

Rh , dissenting operate." Utility Air Regulatory Group, 573 U. S., at ___ (slip op., at 23). This rule makes even more sense where the agency’s view would open up a deeply disruptive avenue of liability that Congress never contemplated.

Not only does disparate-impact liability run headlong into the text of the FHA, it also is irreconcilable with ourprecedents. The Court’s decision today reads far too much into Griggs v. Duke Power Co., 401 U. S. 424 (1971), and far too little into Smith v. City of Jackson, 544 U. S. 228 (2005). In Smith, the Court explained that the statutory justification for the decision in Griggs depends on language that has no parallel in the FHA. And when the Smith Court addressed a provision that does have such a parallel in the FHA, the Court concluded—unanimously—that it does not authorize disparate-impact liability. The same result should apply here.

Rather than focusing on the text of the FHA, much of the Court’s reasoning today turns on Griggs. In Griggs, the Court held that black employees who sued their employer under §703(a)(2) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(2), could recover without proving that the employer’s conduct—requiring a high school diploma or a qualifying grade on a standardized test as a condition for certain jobs—was motivated by a discriminatory intent. Instead, the Court held that, unless it was proved that the requirements were "job related," the plaintiffs could recover by showing that the requirements "operated to render ineligible a markedly disproportionate number of Negroes." 401 U. S., at 429.

Griggs was a case in which an intent to discriminate might well have been inferred. The company had "openly discriminated on the basis of race" prior to the date on