Winfield v. City of New York: Testing the Limits of Disparate-Impact Liability after Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.

This article addresses tensions and questions that remain in the wake of the Supreme Court’s highly consequential opinion, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (ICP), which held that disparate-impact liability is actionable under the Fair Housing Act. A key consideration in Part II will be the Court’s treatment of the legal theory developed by the plaintiff, The Inclusive Communities Project, Inc., that promoting residential mobility to areas of greater opportunity is integral to achieving the aims of the Fair Housing Act. This discussion addresses the Court’s seeming struggle throughout the opinion between, on the one hand, reducing the “salience of race” in social and economic functioning, and, on the other, the importance of reducing the degree of racial isolation that, in segregated neighborhoods, impairs access to resources present in more racially and economically integrated areas. It will show that although the Court ruled that disparate-impact liability was actionable under the Fair Housing Act, it articulated a number of limits on its ruling but offered limited guidance to those seeking to implement the decision.In Part III, the article will address related claims advanced in a recent lawsuit, Winfield v. City of New York, a post-ICP challenge to a lottery, referred to in the complaint as an “outsider-restriction“ policy, that New York City uses to screen applications for access to affordable housing. As developed in the complaint, the policy accords a preference for 50% of units in an affordable housing project to the residents of the community district in which the project is to be built. The complaint turns on the theory that the outsider-restriction policy limits the ability of New York City residents otherwise equally eligible for affordable housing to have equal opportunity to be considered when applying for units located outside their community district. It alleges that this restriction, in turn, impairs the mobility that affords access to housing sited in higher opportunity districts and constitutes disparate-impact as well as intentional discrimination under both the Fair Housing Act and the city’s Human Rights Law.The article will examine the legal theory and background of the Winfield complaint in relation to the Court’s signals in ICP concerning the scope of disparate-impact liability under the FHA. It argues that the facts pleaded in the Winfield case implicate core concerns animating the drafters of the Fair Housing Act, which the Court in ICP recognized. Related to these mobility-to-opportunity concerns in the complaint, the article will note recent research that centers on the significance of place, and in particular opportunities for residential mobility, in improving the life circumstances of persons living in racially and economically segregated neighborhoods. The article concludes with some preliminary observations whether the Court’s analysis in ICP affords support for this litigation-based effort to pursue a vision of racial justice and inclusion in the provision of affordable housing.