Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/68

28 , J., dissenting with statutory purpose." Ante, at 10. The Court stumbles in concluding that §804(a) of the FHA is more like §4(a)(2) of the ADEA than §4(a)(1). The operative language in §4(a)(1) of the ADEA—which, per Smith, does not authorize disparate-impact claims—is materially indistinguishable from the operative language in §804(a) of the FHA.

Even more baffling, neither alone nor in combination do Griggs and Smith support the Court’s conclusion that §805(a) of the FHA allows disparate-impact suits. The action forbidden by that provision is "discriminat[ion] . . . because of "race, religion, etc. 42 U. S. C. §3605(a) (emphasis added). This is precisely the formulation used in §4(a)(1) of the ADEA, which prohibits "discriminat[ion] . . . because of such individual's age," 29 U. S. C. §623(a)(1) (emphasis added), and which Smith holds does not authorize disparate-impact claims.

In an effort to explain why §805(a)'s reference to "discrimination" allows disparate-impact suits, the Court argues that in ''Board of Ed. of City School Dist. of New York v. Harris'', 444 U. S. 130 (1979), "statutory language similar to §805(a) [was construed] to include disparate-impact liability." Ante, at 11. In fact, the statutory language in Harris was quite different. The law there was §706(d)(1)(B) of the 1972 Emergency School Aid Act, which barred assisting education agencies that "'had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation . . . or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees.'" 444 U. S., at 132–133, 142 (emphasis added).

After stating that the first clause in that unusual statute referred to a "disparate-impact test," the Harris Court concluded that "a similar standard" should apply to the