On Thursday, October 2, 2014, the Supreme Court granted a writ of certiorari in Texas Department of Housing and Community Affairs, et al., petitioners v. The Inclusive Communities Project, Inc.
The writ is limited only as to question one of the petition for certiorari—Are disparate-impact claims cognizable under the Fair Housing Act? When the Court hears the case this session, it will not consider question two–If disparate-impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply?
That means that even if the Court finds that disparate-impact claims are cognizable under the Fair Housing Act, it won’t resolve the issues of whether: 1) the operation of the low-income housing tax credit (“LIHTC”) program in Dallas by the Texas Department of Housing and Community Affairs (“TDHCA”) creates a disparate impact on racial minorities or 2) how TDHCA needs to change its operation of the LIHTC program to correct that disparate impact, if any.
The open issues will not stop the LIHTC industry from eagerly awaiting the arguments and decision in this case, but it will likely mean this case will run through the court system at least once more before all the questions are answered.