thank you mr chief justice and may it please the court the fair housing act does not recognize disparate impact claims first because it's plain text doesn't use a fax or results based language and want to statute prohibits actions taken because of race and it lacks effects based language the statute is limited to intentional discrimination and second that the canon of constitutional avoidance compels this interpretation most importantly the act doesn't use the phrase adversely is funny the textual hook for disparate impact liability was based on the phrase adversely you have a problem because it says to refuse to sell or rent etc or otherwise make unavailable and the agency charged prohibited the work that is being done by otherwise make unavailable is to cover additional acts such as zoning decisions or land use restrictions that are not outright refusals or outright denials and that's why the language of the fair housing act focuses on actions not she could say the same thing about it virtually affect i mean that also is an active or right it also you had to justice we i don't believe so because section four a two section seven zero three eight two ban the act of limiting segregating in classifying and then we check for a certain result something which would prohibited making unavailable a dwelling to any person because of race if in common language if you were to say adam made on available it dwelling to bob because of race you ask why did adam act he acted because of race and race was the reason for the action but if i could understand your point general color you agree with just the school year that make unavailable it's like adversely affects them both verbs make unavailable is just one i can't even find them you know what i mean i think justice kagan ok so but i don't think that that could possibly be right because then you would be saying that it would be a different statute if instead of just saying here an employer can't make unavailable but instead it said an employer can't act in a way that makes unavailable that would make it completely parallel to the title seven and the  statutes and those two things just can't mean the same thing i mean all it's doing is to take out a few words but it's saying the exact same thing which is either way an employer can't make unavailable justice kagan i don't think it's saying the same thing and under the reasoning of smith it can't be saying the same thing because section four a one the court unanimously recognized didn't give rise to disparate impact liability it didn't have the phrase that appeared in forty two which was checking to see in any way which would deprive or tend effect in the same way that the adversely effect language does and it just does it a little bit more economically but the effects based nature of the provision is still the same it doesn't focus on the effect of what smith said w forty two for him did the act of limiting segregating classified but smith said that's not simply what it was for having it was checking to see if there was also a deprivation or something attendant deprived or something to adversely affected and that was the effects based language it wasn't merely dropping in a phrase such as make on available all actions have consequences but here congress shows an active verb as meyer which is hardly recognize the fair housing act itself focuses on prohibited you make may come available is not the same language as adversely effect that's that's all that i'm willing to concede and i think if you thought that smith was wrong which many people do i suppose you could argue we will not expand smith and smith wrong on particular words adversely effect those words don't exist here and therefore we think smith was wrong anyway we're not going to extend extended that's that's a reasonable argument but that's not the argument you're making what what hangs me up is not so much that as it is the fact that congress seemingly acknowledged the effects test in later legislation when it said that certain affects will not qualify you know what i'm referring to yes justice you see this statute which which has otherwise what it may come available and it also has however it will not be a violation if these those provisions merely are strict of liability in the court rejected it virtually identical arguments what the respondent in the solicitor general are making in ogilvy versus united states it's a case that appears at five nineteen u s seventy nine just in your brief case is not cited in our brief sorry it page eighty nine of that decision the court noted that congress might simply have wanted to clarify the matter in respect to the narrow exemption but it wanted to leave the law where it found it in respect t but the room where it found it here was very clear because ten circuits had gone the other way and had said that disparate impact was a valid action under the f h a so leave in the road where you found it and we presume that congress knows the law especially when the law is that clear in that uniform means yes that will be disparate impact actions except in these three circumstances which we're going to lay out for you very clearly and very precisely justice kagan one nine hundred eighty eight the state of the law was in flux the solicitor general filed a brief in this court saying at the fair housing act only prohibited acts of intentional discrimination two months before the amendments this court decided in watson and emphasized that the phrase adversely effect was the language that gave rise to disparate impact by ability of congress would have to take the congress was assumed to have known that this court's precedents were in place how do you  they have to write it or otherwise adversely affects someone by making the housing unavailable otherwise i mean it's a little crazy don't you think because otherwise congress could have used the same language that appeared in title to have said what it did it took a body of law some of which had held some practices as discreetly improperly disparate impact like drug addiction and others and to others and said no those two won't count those three won't count your reading of those three exemptions is they were unnecessary but they were referring to representative swindles amendment and the mere fact that congress didn't act a provision this court has not looked to if you sure it's look you if you're telling us that these amendments which said that certain types of facts will not qualify at the purpose of that amendment was to prevent iran we use court of appeals decisions from affecting those particular areas just clear that's part of the world a very strange thing for congress to do to believe that those court opinions court of appeals opinions are wrong and yet to to enact these exemptions so even though those opinions are wrong they will not apply to these things that's first rate well in one nine hundred eighty eight when congress legislated it agreed on one thing and that was in these three narrow circumstances the liability would be restricted on the fair housing act it would be extremely odd to read into a restriction of viability or recognition of a massive expansion of fair housing act liability and congress does not hide elephants in mouse holes exactly and ten circuits had already said there was this  if they didn't like the disparate impact analysis they would have taken up the congressman's proposal but they didn't in that brief the solicitor general filed in one nine hundred eighty eight it made the point which is absolutely the same today which is congress knows extensions it it recognize disparate impact as applying to the fair housing that intentional brief was not in one nine hundred eighty eight and not in that it law consists not just of what congress did in one thousand nine hundred sixty eight but also what it did in eighty eight and you look at the whole law and you say what makes sense and if you read those those two provisions together it seems to be an acknowledgment that there is such a thing as disparate impact however it will not apply in these areas that the one nine hundred eighty eight amendment says we don't just look at each little piece when it was serially enact and say what a congress take in sixty eight would think it seventy two we look at them all of them in law includes the sixty eight act and the eighty eight amendments and the hype i find it hard to read those two together e impact there it's they are prohibiting something that doesn't exist i think you're saying that they prohibit something that doesn't exist so they could do more work they do work in district disparate treatment cases take the occupanc action the fair housing act also prohibits the failure to make accommodations based on disability the occupancy exemption is going to do work in that case and says right in city of edmonds the court noted that these exemptions were complete exemptions from f h a scrutiny congress didn't say that it was limiting these to disparate impact it said we don't want these claims to go forward so you have an argument it's an easy on the side have an argument that i don't want you not to have the chance to answer but to me is a pretty important question there are good arguments on both saw the law has been against you there's been disparate impact for forty years now let me be fair maybe it's only thirty and it's universally against you and as far as i can tell the world hasn't come to an end i mean the form of the question i'm putting is well maybe marbury vs madison was wrong i don't think it was but nonetheless nonetheless this is been the law of the united states uniformly throughout the united states for thirty five years it is important and all the horribles that are painted don't seem to have happened or at least we have survived them so why should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people has not produced disaster on the basis of going back and making a finely spawn argument on the basis of a text that was passed many years ago and question which is the question that it's been the law for forty years or just a little bit less disaster has not occurred and why when something is so well established throughout the united states should this court come in and change there's a serious equal question lurking here and as to why you would change it disparate impact liability and where it leads is being applied in a case like this in mega versus gallagher texas here was trying to give additional i don't like the way it was applied and i can understand that but there are many remedies that you have one is you go to h u d and you say look at what is happening this is happening to have the opposite effect you want that's one of your arguments or try to convince them and if they don't there you go to a court and say court this is a disparate impact case and we have a justification and the justification is strong enough that it survives the empirical effect and you see if you can get them to agree you may run you may lose but what not to do is to overturn the whole no that has been a fact i repeat for the nineteenth time for forty years with basically helpful effect al that's a question it didn't sound like one but it was one so i'd like to hear what you say the equal protection concerns here are stark first the government has not explained if it's going to enforce the hard regulation to protect only minorities if it does that's likely unconstitutional and rather and if it doesn't that's going to interfere with federal and state programs that help lower income neighborhood maybe i'm missing something have decided it in a uniform fresh have rule ever before reversed uniform holdings of courts of appeals even those with less than thirty years the answer is yes you have rejected the overwhelming consensus of the courts of appeals and that's why i still estuary why rot i'm not saying you could do it i'm simply saying why and i don't want to repeat my question for the fourth time and you begin to give an answer and the answer you began to give was based on a constitutional problem that has arisen and i taken that and read it and you have other answers or not i want you fully to answer the plain text of the statute is clear constitutional avoid that interpretation and the purposes of the fair housing act would be undermined by extending disparate impact liability to this degree well richard else talking about application and let's go back to you made a statement earlier that this is going to inhibit development of blighted areas that has to do with the application in this case if i'm right about the theory of disparate impact and i can tell you studied it very carefully its intent is to ensure that anyone who is renting or selling property or making it on the pale of will is doing so not on the basis of artificial arbitrary or unnecessary hurdles policies or practices and it's the petitioner who has to identify which they are and to explain why alternatives wouldn't work if that can't be substituted for something else so i don't know why you keep saying this is going to affect private development just ricci the court reserve the question of whether disparate impact liability in requiring race based decision making would violate the equal protection that this is not a race based decision making are you saying that the ten percent plan in in colleges is race space it is an absolutely neutral policy that happens to address a need which is to integrate neutral but happen to have a better impact in terms of integration just certainly i would disagree that it's completely race neutral because at the outset statistical disparities based on race racial classifications are used and this has the potential to subordinate traditional which is not the case for the ten percent plan the texas use is absolutely just as are so the racial here if you're in the top ten percent of your high school class you go to the state university ability is not trick well trigger it's a good word but it's not imposed because of that it's imposed because the lower court found rightly or wrongly i don't want to get into the merits of that that some of the criteria being used was  unnecessary and that was and there was no legitimate business reason for it i could as justice prior said quarrel with that conclusion but that's an application that's not  in the standard that disparate impact imposes but what objective standard is there to measure whether something is a substantial interest in the housing contacts and that's why disparate impact liability can lead to the result is credit from the congressional record congress was worried and concerned about making units only available in low income minority areas that it called ghettoes the remedy that it wanted it isn't the unavailable word that's the problem the problem is unavailable on the basis of race you can say unavailable a million times but the statute requires that it be made i'm available for racial reasons and you're saying no it doesn't have to be it could be unavailable simply because you use some other nonracial reason which is stupid and that's at your argument if it produces a result that is  is not what i don't know that the races have to be in the same proportion as they are in the general population right i mean that's what you're right you know the argument is that if in fact racial discrimination is a for consequence of what someone is doing that no one should disparity is not racial discrimination the fact that the n f l is it is a largely black players is not discrimination discrimination requires intentionally excluding people of a certain race is really and crucially let's let's not equate racial disparity with discrimination the two are quite different and what you're arguing here is that racial that if i'm going to make a disparate treatment case that there is intentional discrimination i'm going to start with the effects just the same place i start with a disparate impact or start with the effects has there been an effect consistent with discrimination induced good impact i then go on to the next step is a ensures that justifies the discriminatory effect it's could be the same discriminatory effect that is caused by tent which is not part of a disparate treatment it's a disparate impact theory and i would have thought that your main argument about that is now actually the court has held numerous times in the title seven context in the context in the rehabilitation that context in the emergency school of act context that that the course of language can be r just how is the housing authority supposed to if you have a claim of disparate impact how is the housing authority supposed to cure the alleged problem assuming that you go through the steps and that there is housing authority supposed to do at that point that point i wasn't there already is the state this is what interest rehab served by the discriminatory practice causing the the racial segregation that's what they say it whatever that interest is and they say that this is this interest justifies our practice are there we're doing at that point in time we come back and say but there are other ways to do it that are less discriminatory then th is the real way to avoid a disparate impact consequence without taking race into account in carrying out the governmental activity it seems to me that if the objection is that there aren't a sufficient number of minorities in a particular project you have to look at the race until you get whatever you regard as the right target you know and you know just look at the race at all you look at the practice causing it and you stop the practice like in this case i the remedy suggested by the state that was in fact the last discriminatory alternatives for a large extent to what they had been doing there's no racial goals in it there's no race conscious unit there's no racial like tyrian it it is a there is and it is the remedy that the state says will work to stop the discriminatory practice could we backpacked could we go back to say i think you've been interrupted the steps are first you is it that the numbers are off then the other side tells you what the reason is or why the numbers are even half an opportunity or an obligation to come and suggest alternative who methods up taking care of the legitimate business sneak correct yes just as so you those are the three steps yes if you can propose raids that are at least neutral practices that are loose neutral that will have to take care of their needs meaning the other side's needs then you get relief  example one of the ways proposed was do not continue putting projects next to the landfills and hazardous industrial uses that might have a tension between the s the last pacifically says that there should be a preference among all the projects are going to be awarded for applications that contribute to a concerted community revitalization plan that preference is honor remedy and as in the remedy if you are if the application is conserving its contributing to a concerted community revitalization plan just like in the i r s code then it gets the same points as a found that the state did not do that the state instead gave a two point one to two points selection criteria bonus for that kind of project that's that's but that's a staging point so you can you go back to tellus to school his question please as to his i just want to hear your answer to it as i understood his question it was you look at the words and the words make unavailable because of race and what you're saying is those words make unavailable because of race can include the circumstance where you make on available poor a reason that has nothing to do with race we're the effect of that reason is to cause a racial disparity of significance and it cannot be justified as the least restrictive way to bring about that's the point that you're saying those words are consistent with the longer phrase i just set ok is there case law or other aside other in this course to two major unions on this or course grid and smith the same issue was wrestle with the other courts who have found the same thing and the courts of appeals wrestling with this because a nd it is at least admits that it is a a it can't it's a permissible reading either way but in smith however the court plurality opinion cited two additional things it didn't just say because of can mean disparate impact statutory construction use the congressional record what congress wanted to do thirty six zero one which congress passed a say and has been used to give an expansive interpretation of marriage and standing in foresman we think those all the statutory construction combine to make it at least permissible and therefore giving due deference to hydrate you ation if there was no discrete impact under congress intended to cover a fax of past segregation and other discrimination whether it was intentional or not it's throughout that record it is discussing the major implement of racial segregation has brought about it intended to end the effects of that it said it again and again we think and one nine hundred eighty eight it's really recognize the disparate impact talk about the disparate impact rule in the courts of appeals it knew it was there it was being done in the context of courts of appeals eight at a time when nine i think the numbers nine courts of appeals had ruled that the fair housing act authorized the sporting pact and the then they were added to provide defenses to exemptions from their label could possibly argue well that was put in just to eliminate the erroneous judgments of these courts of appeals in certain areas anyway it be better if the court of appeals said that well congress hadn't acted you know i actually think it's better the way it happened because for our case because of the reenactment canon that we have section eight zero five of this law was reenacted against the backdrop so you have the reenactment of those nine court because as you say you have the reenactment canon and you have the canon against impact is that it's very difficult to decide what impact is is good and bad take two proposals one is a proposal to build new housing in a low income area that would benefit primarily primarily minorities new housing good things the other proposal is to build housing in a more affluent area would help promote integration of housing also a good thing which one gets credit for under trying to decide impact the one that is revitalizing a low income area for the one that is integrating a high income area right i understand that mr chief justice and there may be difficult questions of course the agency here charged by congress expressly in the one nine hundred eighty eight amendments i would add with interpret ing and enforcing these provisions has concluded that they do that disparate impact is the right policy judge no no but and which and which counts i mean which benefits you're trying to see if there's a disparate impact on the the proposal to the low income housing in the affluent neighborhood it certainly benefits integration if you have the proposal to fund the proposal in the low income area that certainly helps housing opportunities there so i'm going to answer your honest question directly but i think you've got to do it in the context of the way in which a disparate impact case has got to be proven it's not enough just that there's a statistical disparity a plaintiff has got to demonstrate that a particular fact is your criterion being applied we're you know although we are here defending hud's interpretation and we think the answer to the question presented is yes that that's we don't have a position on whether this is a viable disparate impact claim and we think judge jones has made a good point in our in her concurrence because it's not clear to us what specific practice that that the state agency has engaged in here that would justify the finding of disparate impact liability and one thing that was suggested is maybe that could be dealt with on remand from the district court and i do think that's that's what gets to what i was trying to say to you mr chief justice which is that you've got to apply the test which is how to set out as well because i asked with respect i don't think that's a risk nancy you say you look at which provision is having the disparate impact but i still don't understand which is the disparate impact while in other words is it the provision that causes more proposals to go to low income housing in the affluent area or is it the provision that causes more approval of mo the low income area you've got to know what you're shooting at before you can tell an adult whether disparate the disparity tied to a particular practice is just the first step and the analysis the second step in the malices is justification what's the justification just ask for that last year i mean unless you get on you're saying you need a justification but forgot which is the bad thing to do not promote better housing in the low income area or not remote housing show it may be so you look at what's causing the bad effect but what's the bad effect it may be that neither is because the state may say they hate the government may say in the first case or this is our justification and that may be a justification that holds up the government may say in the second well that's our justification that may be a justification that holds up so i just think that do you think that a private developer would ever be found guilty of disparate impact because he owns a piece of property in an though will be it's not a developer it's the department of housing and community affairs and i thought the challenge went to where they were then where they were supporting development with this not the developer but this may not be a good disparate impact claim mr chief justice that the cases that are in the heartland are really pretty straightforward when are you saying that a case of the chief justice puts there is a nationally disparate impact at step one that is to say either case step one has been satisfied it that may be right justice kennedy but i think the point of that scene but it seems very odd but i think that even if they're difficult cases on a disparate impact they are in the heartland that have been adjudicated for thirty five or forty years cases such as there's a zoning restriction that has a disparate impact that cannot be justified on a substantial basis there's an occupancy restriction for values are the question i'm sorry about chevron holly case and the holly case settled so should we be troubled by this chronology so i understand the import of your question your honor i guess i would say a couple of things in response the first is that hud in the formal adjudications refute by the secretary has found disparate impact liability available under these provisions in the fair housing act since one thousand nine hundred ninety two i believe and those would be entitled to chevron deference and i do think respectfully that that's a point that we made in our brief in in the first case the gallagher case the second and i don't mean to be flip about it because i understand the import of your honor's question but and so i don't i think actually this has been the position of god for a very long time and you would get chevron deference for the adjudications i think that's pretty pretty clear of all the apart on the reg but we do have the reg now and i do think it gets and if i could turn to the question of avoidance constitutional avoidance that has come up i don't think this is a suitable case for constitutional avoidance and let me try to explain why we're never one might think in the title seven context about the consequences of finding disparate impact liability this is a very different context in the title seven context the issue has been raised is that the only way to avoid this part impact liability is to engage in race based remedies not race based thinking about what neutral criterion to adopt but race based remedies and here in the heartland cases under the fair housing act you aren't going to have that kind of an issue the remedy is going to be the substitution of one race neutral rule for another race neutral rule for example if it if a landlord cannot justify an occupancy restriction that's particularly tight the remedy there is going to be either no occupancy restriction or a looser occupancy restriction and the consequence in those cases same thing with zoning and other things of consequence in those cases is not is that no one gets classified by race no one gets a burden imposed upon them because of race and no one gets a benefit because what right lou you select depends on what that will have on racial racial use of the exactly the kind of thing that the plurality opinion of this court in cross and said in the contracting context that governments could do they couldn't afford a preference to minority contractors but they could do with such things the courts in just as changing the bonding requirements or changing other financial requirements in order to make the minority contractors which tended to be newer smaller businesses more eligible so no score that those i think everybody's getting confused with this disparate impact this not go to who they course were fine and justice kennedy they're like the kinds of race neutral considerations that your honour's opinion of parents and what you're saying is i suppose that the plaintiffs in this case that side wins to try they're trying to win the defen it's not true that that means all section eight housing is now going to be or even a large amount is going to be put in rich neighborhoods first they can defend on the ground that we don't have that rocks to put it in poor second they can say yes we do but don't you see that isn't going to hurt minorities because it puts minorities in housing where many of them are unfortunately in poor neighborhoods and it doesn't have the great effect on desegregation that they think or third if they lose on that they can say but anyway it's justified for whole bunch of reasons yes that's the answer is case by case they have a specific set of forms that give answers that and judges judge it and hard can come in and decide and there is no need to throw the whole baby out all i don't know whether it's the baby with the bathwater whatever you're throwing out what you don't have to throw out all big thing in order to prevent that just as i can understand because again i don't know what you're shooting for two different communities ok they have these tax credits whatever to give out one place they give it to the housing in the affluent neighborhood the other they give it to the housing in the low income neighborhood they're both sued for disparate impact in the one they said oh no this is good because we're promoting integration so the impact on minorities is not a problem and the other says no this is good because we're revitalizing low income neighborhoods and that helps of disparate impact liability could result in not just race based thinking about neutral means but race based remedies it seems to me the answer there is the answer that the court usually gives which is think about them on an as applied basis but that isn't a justification for against the backdrop of imposing the exemptions which presupposed disparate impact liability and reenacting a statute in which not after nine courts of appeals had found that it did impose disparate impact liability the question here is whether under that the answer to that question must be no it does not unambiguous lead for forbid hard from reaching the conclusion it reached and therefore the answer the question presented in this case which is whether the fair housing act recognizes disparate impact liability can i just ask i don't know a lot about the salary and i take it that one of the things that you are warning us against is seeing the entire area through the prism of this one quite unusual case and you've referred few times to sort of the opinions for thirty five years restrictions say a town adopts a restriction saying you can't convert housing from ownership to rental unless you run into a blood relative has the effect of excluding minorities a town adopts an occupancy restriction for apartment buildings that's so tight that you're not going to be able to that families with kids are going to have a live there that disproportionately affects minority groups with kids you know those kinds of things zoning restrictions housing program restrictions those kinds of rules are the heartland cases thank you thank you general general keller you have four minutes remaining mr chief justice the answer your question is both would open up liability for disparate impact here the department could have faced disparate impact liability if was going to take tax credits and send them to lower income neighborhoods or more affluent neighborhoods even if you don't saying that  that's not what happened here the remedy was not to tell you to move your development from one area to another to remedy it did preclude development next to when fills but it also included other other tinkering with the qualifications but you're going to still need people who want to do things but in the ready in this case the dish of development they want to do it retain jurisdiction for five years so you get the disparities that wants to go with your attacks on the remedy that has doesn't have anything to do with what disparate impact as an approach set out by hu direction be done and each regulated entity is going to have to examine the racial outcomes of their policies and every zoning decision no hate in it we're going to have is in a way new is what everyone should do is before they set up any policies think about what is the most race neutral policy that's a very different thing that i think everyone is obligated to do and that's precisely what the only if the other side hoops that qualification has and a race affair that's not necessary can they weigh in here the department of gauge and race neutral policies justice alito to your point about smith and the eighty is reasonable factors there are three things that distinguish that from this case first there's an important textual difference eighty is reasonable factor other than age provision referred to actions otherwise prohibited in the court smith interpreted that as recognizing the disparate impact liability could lie in the a d f a and the fair housing and we don't have that language the exemptions say nothing in the f h a prohibits or limits so this is truly a safe harbor second smith already noted that the eighty eight used to adversely effect in third smith didn't involve the race and so no constitutional avoidance can would have applied there and on constitutional grounds the reason we're here today is because the texas department did not use race based decision making take a hypothetical from group or if the university of michigan and said the incoming class must have thirty percent of its incoming class of a certain race and we prefer that race conscious or race neutral means were used to do that but if those aren't available race based means must be used that would be suspect at the ten twenty fifteen percent particular remedy here wasn't race based but a liability to begin with and whether the disparity is going to close and whether the department is going to remain not in compliance with the fair housing act is still race based thank you mr ch justice thank you counsel the case was submitted