By Malik Morris-Sammons
Since the Supreme Court decided its landmark fair housing case, Texas Department of Housing and Community Affairs v. Inclusive Communities, the federal judiciary has proven a formidable battleground for communities of color seeking to enforce their civil rights under the Fair Housing Act (FHA). The opinion created a “robust causal connection” requirement that forces plaintiffs to establish a direct link between an enacted policy and its disparate impact on a racial minority group. This Note highlights how this requirement has led the courts to take on a disparate impact analysis that is devoid of history when assessing how segregation continues to harm communities today. In addition to analyzing historical policy missteps, this Note further discusses the obstacles imposed by circuit and district courts’ interpretations of Inclusive Communities, which make it nearly impossible to succeed on a racial disparate impact claim under the FHA. Drawing upon federal housing policy, jurisprudence, and comparative property-related provisions of South Africa’s post-apartheid Constitution, this Note suggests ways to restructure the disparate impact analysis to account for the tragic history of racial segregation when assessing claims brought by communities of color.