#BlackLivesMatter, Disparate-Impact, and The Property Agenda

America’s long history of housing discriminatory practices created the need for legislation to ensure fair housing for Blacks. Prior to the twentieth century and up until the passage of Civil Rights legislation, in particular the 1968 Fair Housing Act, residential segregation relegated Blacks to extremely impoverished and blighted urban neighborhoods, while leaving Whites to reside in more affluent, suburban neighborhoods. Although the Fair Housing Act provides a legal mechanism for challenging discriminatory housing practices, a split has long existed among the courts as to whether one could prevail in such a claim only by showing actual discriminatory intent, or whether a mere showing of discriminatory effect would suffice. The latter method is known as the disparate-impact theory.In the 2014 case of Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the U.S. Supreme Court addressed this split and upheld the validity of the disparate-impact theory. However, in doing so, the Court placed significant limitations on the ability of a plaintiff using the disparate-impact theory to prevail. Specifically, the Court imposed an overly limiting framework for raising a disparate-impact claim by requiring not only significant statistical evidence of discrimination but also an overly muscular showing of causality. This Note argues that such a strong causality requirement significantly reduces the number of persons who might be able to prevail under a disparate-impact claim. This, in turn, has the potential to shut down many legitimate claims of housing discrimination in instances where the practices and policies of the defendant are engineered so as to be particularly difficult to directly connect to the discriminatory effect. Instead of adopting such a strong causality element in all disparate impact-related housing claims, this Note argues for a more nuanced approach. Specifically, courts faced with a disparate-impact theory claim of liability should utilize a sliding-scale approach to causality. This sliding-scale approach would both stay true to the Court’s attempt to narrow the disparate-impact theory while still giving the theory a broad enough scope to be effective in policing unfair housing practices.Importantly, the framework developed in this Note adds to the broad policy planks of the #BlackLivesMatter movement, where until now has not seen its mission through the lens of housing fairness and access. Since the #BlackLivesMatter movement is recognized as a national leader in combating social injustice, the Black community could benefit greatly from the movement’s fight against racial segregation and discrimination in housing policy. From access to wealth, jobs, education, and public accommodations, Blacks and other racial minorities have struggled to obtain equal footing with their White brothers and sisters. Much like other social movements of the past several years — like the Occupy Wall Street movement — government and policy makers have inquired as to what policy agenda the BlackLivesMatter movement hopes to achieve. As leaders of the Black equality movement continue to think about articulating the broad policy objectives of these efforts, one significant goal should be the continued fight against racial segregation and discrimination in housing policy. In other words, the #BlackLivesMatter movement is in need of a property/housing law agenda.