A week ago, the Court granted cert in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The case involves a challenge to the allocation of low-income housing tax credits under the Fair Housing Act. The narrow question for the Court is whether the Fair Housing Act recognizes disparate impact claims. But a far more important and far-reaching question lies in the background of the case: what is the constitutional status of disparate-impact claims?
Put this way, this question takes me to the end of last Term and Hobby Lobby. While the case was hailed at the time as either a victory for religious freedom or an attack on women's health care, a crucial aspect of this debate has gone almost unnoticed: how Justice Alito's opinion for the Court appears to short-circuit the ongoing conservative project to end the Second Reconstruction.
