Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/71

Rh , dissenting provide a defense against disparate-impact liability if a defendant can show that its actions serve "“substantial, legitimate, nondiscriminatory interests" that "necessar[ily]" cannot be met by “another practice that has a less discriminatory effect." 24 CFR §100.500(b) (2014). (There is, of course, no hint of anything like this defense in the text of the FHA. But then, there is no hint of disparate-impact liability in the text of the FHA either.)

The effect of these regulations, not surprisingly, is to confer enormous discretion on HUD—without actually solving the problem. What is a "substantial" interest? Is there a difference between a "legitimate" interest and a "nondiscriminatory" interest? To what degree must an interest be met for a practice to be "necessary"? How are parties and courts to measure "discriminatory effect"?

These questions are not answered by the Court’s assurance that the FHA's disparate-impact "analysis 'is analogous to the Title VII requirement that an employer's interest in an employment practice with a disparate impact be job related.'" Ante, at 4 (quoting 78 Fed. Reg. 11470). See also ante, at 18 (likening the defense to "the business necessity standard"). The business-necessity defense is complicated enough in employment cases; what it means when plopped into the housing context is anybody's guess. What is the FHA analogue of "job related"? Is it "housing related"? But a vast array of municipal decisions affect property values and thus relate (at least indirectly) to housing. And what is the FHA analogue of "business necessity"”? "Housing-policy necessity"? What does that mean?

Compounding the problem, the Court proclaims that "governmental entities . . . must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes." Ante, at 21. But what does the Court mean by a "legitimate" objective? And does the Court mean to say that there can be no