Legal Case Summary

We'll hear argument first this morning in case 13, 1371, the Texas Department of Housing and Community Affairs versus the Inclusive Communities Project. Mr. Heller? Thank you, Mr. Chief Justice, and may it please the Court. The Fair Housing Act does not recognize disparate impact claims first, because its plain text doesn't use effects or results-based language. And when a statute prohibits actions taken because of race and at last effects based language, the statute is limited to intentional discrimination. And second, the canon of constitutional avoidance compels this interpretation. Most importantly, the act doesn't use the phrase adversely affect Smith versus City of Jackson, recognized that this effects based phrase. At the time of Smith and Greg, neither the title seven or the ADA, used the words disparate impact. And yet we recognize they apply disparate impact. At the time, the words disparate impact are not used. However, the words adversely affect were used. And Watson subsequently interpreted Griggs as finding the textual hook for disparate impact liability was based on the phrase adversely affect. Well, you have a problem because it says to refuse to sell or rent, et cetera, or otherwise make unavailable. And the agency charged with interpreting that language has determined that it means disparate impact. Justice Sotomayor, the phrase make unavailable is an act prohibited by the Fair Housing Act. It is an act. It has been to be because that's what you do with housing, but it's a consequence. The act of making unavailably dwelling to a person is the act prohibited by the Fair Housing Act. This isn't like Section 4A2 of the ADA, where Smith said disparate impact lied. This is like Section 4A1 of the ADA, because the 804A prohibits the refusal to negotiate, otherwise making unavailable or denying. All of those are active verbs, and they are all acts 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. Now, no. Right? And it also, you had to adversely affect by discriminating. I'm a blank guy. You know, I'm the point you make are true enough, but they were also true with respect to Title VII, weren't they? Justice Scalia, I don't believe so, because Section 4A2, Section 703A2, banned the act of limiting, segregating and classifying

. And then they checked for a certain result, something which would deprive, tend to deprive, or adversely affect. And it was that result or effects checking language that gave rise to disparate impact clearly. And after that language is the phrase on the basis of race 6, whatever. So it's adversely affect on the basis of the prohibitive category. Well, and that was the interpretation that the Smith-Florality and concurrence came to on Section 4A2. But in Section 4A1, the phrase because of race appears, and you have active verbs there. You have refused and otherwise discriminate. And the Court was unanimous in finding that Section 4A1 only required intentional discrimination did not give. Do we take into account at all that in both Title VII and the Fair Housing Act, there was a grand goal that Congress had in mind. It meant to undo generations of right discrimination, and what was the phrase that this Court used in traffic County describes the Fair Housing Act that its objective was to replace ghettos by integrating integrated living patterns. Justice Title VII was meant to undo a legacy of right-conforming discrimination. So, doesn't that purpose give a clue to what Congress was after? Well, Justice Ginsburg, the Court needs to focus on the plain text. And unlike Title VII, which was passed in 1964, unlike the ADA, which was passed in 1967, both of which included the phrase adversely affect. In 1968, when Congress passed the Fair Housing Act, it didn't use that language. Instead, it prohibited making unavailable a dwelling to any person because of race. In common language, if you were to say, Adam made unavailable a dwelling to Bob because of race, you ask, well, why did Adam act? He acted because of race, and race was a reason for the action. But if I could understand your point, General Keller, you agree with Justice Scalia that make unavailable like adversely affect, they both verbs make unavailable as just one way to adversely affect. And what you are pinning your argument on is these extra added words in the Title VII statute, right, so that it's in the Title VII statute, it's, you know what I mean? I do, Justice Gagan. Okay. 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 VII and the ADA 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 Gagan, 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 4A1, the Court unanimously recognized, didn't give rise to disparate impact liability, and it didn't have the phrase that appeared in 4A2, which was checking to see in any way which would deprive or tend to deprive or adversely affect. Without that result-based language, you can't have disparate impact liability. That's what Ritchie said. No, the same. But the thing that's different in this statute is the make unavailable, which focuses on an effect in the same way that the adversely affect 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. What Smith said was 4A2 prohibited the act of limiting, segregating, and classifying. But Smith said, that's not simply what it was prohibiting. It was checking to see if there was also a deprivation or something that attended to deprive or something that adversely affected. And that was the effects-based language. It wasn't merely dropping in a phrase such as make unavailable. All actions have consequences, but here Congress shows active verbs. As Meyer versus Holly recognized, the Fair Housing Act itself focuses on prohibited acts. Yeah, make unavailable is not the same language as adversely affect. 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 hung on particular words adversely affect those words don't exist here. And therefore, since we think Smith was wrong anyway, we're not going to extend it. That's a reasonable argument, but that's not the argument you're making. 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 effects will not qualify. You know what I'm referring to. Yes, Justice Scalia. Why doesn't that kill your case? I mean, when we look at a provision of law, we look at the entire provision of law, including later amendments, we try to make sense of the law as a whole. Now, you see this statute, which has otherwise what is make unavailable. And it also has, however, it will not be a violation if these effects are, or you read those together and you say, wow, this law must mean mere effects qualify. Justice Scalia, the 1988 amendments in enacting three exemptions from liability. Those provisions merely restricted liability. And the Court rejected a virtually identical argument to what the Respondent and the Solicitor General are making in Ogle V versus United States. It's a case that appears at 519 U.S. 79

. Is this in your brief? The case is not cited in our brief. No, I'm sorry. At page 89 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 to the broader issue. But the law 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 FHA. So leaving the law where you found it and we presume that Congress knows the law, especially when the law is that clear in that uniform, means, yes, there will be disparate impact actions except in these three circumstances which were going to lay out for you very clearly and very precisely. Justice Kagan, in 1988, the State of the Law was in flux. The Solicitor General filed a brief in this Court saying that the Fair Housing Act only prohibited acts of intentional discrimination in 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 liability. And if Congress would have taken, if Congress was assumed to have known that this Court's precedence were in place, how do you put adversely effect? Did they have to write it? Or otherwise adversely effect someone by making the housing unavailable? Otherwise. I mean, it's a little crazy, don't you think? Because otherwise adversely affecting someone by making it unavailable? I think it's otherwise make unavailable. Well, otherwise it could have shortened form of that or the otherwise limit housing opportunities in a way that would adversely affect. Congress could have used the same language that appeared in Title VII. But instead what it did, it took a body of law, some of which had held some practices as improperly, disheartedly impacted, like drug addiction and others and two others, and said, no, those two won't count. Those three won't count. Your reading of those three exemptions is they were unnecessary. Well, they were absolutely doing work in 1988. And Congress could take account of the fact that what do you make with 1988 where someone wanted to do away with this burden pack and Congress didn't take up that invitation? Just to say, I believe you're referring to Representative Swindall's amendment. And the mere fact that Congress didn't enact a provision, this Court has not looked to, and keeps reading. You're telling us that these amendments, which said that certain types of effect will not qualify, that the purpose of that amendment was to prevent erroneous Court of Appeals decisions from affecting those particular areas. Justice Scalia, that's part of the work. It's a very strange thing for Congress to do to believe that those Court of Appeals opinions are wrong and yet to enact these exemptions. So even though those opinions are wrong, they will not apply to these things. That's very strange. Well, in 1988, when Congress was legislating, it agreed on one thing. And that was in these three narrow circumstances, liability would be restricted on the Fair Housing Act. It would be extremely odd to read into a restriction of liability, a recognition of a massive expansion of Fair Housing Act liability. And Congress does not hide elephants and mouseholes

. Exactly. And Ten Circuits had already said there was disparate impact. If they didn't like the disparate impact analysis, they would have taken up the Congressman's proposal. But they didn't. In the brief that the solicitor general filed in 1988, it made the point, which is absolutely the same today, which is, Congress knows how to enact an effect change. Just when, no, no. When 1988 happened, the solicitor general changed its position. And it has been consistent since then that when Congress adopted the three exemptions, it recognized disparate impact as applying to the Fair Housing Act. That intentional brief was not in 1988 and not in, it was after, that was before 1988. The 1988 amendments. It was before the 1988 amendments, that's right. But this Court was considering the issue in town of Huntington and after the amendment. So while Congress is passing the 1988 amendments, this Court has a case where the issue is raised and was actively considering it. And so I thought your argument on the 1988 amendments was as follows. Either the Fair Housing Act contemplated disparate impact analysis when it was adopted in, when was it 1968? Or it didn't. And the 1988 amendments, which made it clear that there could not be disparate impact analysis with respect to certain matters, surely didn't expand the scope of the 90, of what was initially enacted. So the issue is what did Congress intend, what does the meaning of the Act as originally enacted? I thought that was your argument. Precisely, Justice Alito. The 1968 amendments. But it was going to be realistic about this in 1964 when the Civil Rights Act passed. And in 1968 when the Fair Housing Act passed, nobody knew anything about disparate impact. That didn't come up till the greatest decision, and it was this Court that gave that interpretation to Title VII in light of the purpose of the statute. So to try to look back and say, oh, did they mean disparate impact in 1964 when Greece wasn't on the books till 1971? It's a little artificial, don't you think? The Court has to construe the plaintext of the statute that Congress enacted. And the text in 1964 did not use effects. Sorry. It has to, it has to construe the plaintext of the law. And the law consists not just of what Congress did in 1968, but also what it did in 88

. And you look at the whole law and you say, what makes sense? And if you read those two provisions together, it seems to be an acknowledgement that there is such a thing as disparate impact. However, it will not apply in these areas that the 1988 amendment says. We don't just look at each little piece when it was serially enacted and say, what did Congress think in 1968, what did it think in 1972? We look at the law. And the law includes the 68 act and the 88 amendments. And I find it hard to read those two together in any other way than that there is such a thing as disparate impact. The 1988 amendments don't refer to disparate impact. This is not like the Title VII 1991 amendment that explicitly used the words disparate impact. No sense unless there is such a thing as disparate impact. They are prohibiting something that doesn't exist. Right? You're saying that they prohibit something that doesn't exist. They could do more work. They do work in disparate treatment cases. Take the occupancy exemption. 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 this is why, in City of Edmonds, the Court noted that these exemptions were a complete exemptions from FHA 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. And so does the other side have an argument. But I don't want you not to have the chance to answer what to me is a pretty important question. Say there are good arguments on both sides. The law has been against you. There has been disparate impact for 40 years. Now, let me be fair. Maybe it's only 35. 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 versus Madison was wrong. I don't think it was. But nonetheless, nonetheless, this has been the law of the United States uniformly throughout the United States for 35 years. It is important in 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 finally spun argument on the basis of a text that was passed many years ago. And is ambiguous at best? If you were to believe this is statute's ambiguous? No, well, I don't think I'd in mind goodness if it isn't ambiguous, it would be surprising because ten circuit courts of appeals have all interpreted it the way opposite you and I take it, you don't mean it's unambiguous on their side. In 1988, the amendments didn't touch the text of the 1968 Fair Housing Committee. If you'll do me the favor of answering my question, which is the question that it's been the law for 40 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 it? There is a serious equal protection 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 Magnav versus Gallagher. Texas here was trying to give additional work to the Court. You 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 HUD and you say look at what is happening. This is happening to have the opposite effect that you want. That's one of your arguments. But try to convince them. And if they're not 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 win, you may lose. But what not to do is to overturn the whole law that has been in effect, I repeat for the 19th time, for 40 years with basically helpful effect. Now that's a question. It didn't sound like one, but it was one. So I'd like to hear what you said. The equal protection concerns here are stark. First, the government has not explained if it's going to enforce the HUD regulation to protect only minorities. If it does, that's likely unconstitutional under Adorama. And if it doesn't, that's going to interfere with federal and state programs that help lower income neighborhood. How? Maybe I'm missing something

. Didn't this court decide Marbury versus Madison? Absolutely, Justice. My question is not big about France. I mean between the situation here, this court has never decided this issue. It's just that lower courts have decided it in a uniform fashion. Have we ever before reversed uniform holdings of courts of appeals? Even those who have lasted 30 years? The answer is yes. You have rejected the overwhelming consensus of the courts of appeals. That's why I asked the question. Why? Why? I'm not saying you couldn't do it. I'm simply saying why? And I don't want to repeat my question for the fourth time. And you began to give an answer. And the answer you began to give was based on a constitutional problem that has arisen. And I've taken that in and read it. And do you have other answers or not? I want you fully to answer the question. The plain text of the statute is clear. Constitutional avoidance compels that interpretation. And the purposes of the Fair Housing Act would be undermined by extending disparate impact liability to this degree. Well, you're now 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 I've studied it very carefully, it's intent is to ensure that anyone who is renting or selling property or making it on the basis of an unavailable 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 someone's developing a blighted area or an area subject to crime or something else, that's something they can do. And that's a criteria of policy that can't be substituted for something else. So I don't know why you keep saying this is going to affect private development. Justice Sotomayor, in Ritchie, the Court reserved the question whether disparate impact liability and requiring race-based decision making would violate the equal protection for their date. But this is not race-based decision making

. Are you saying that the 10th percent plan in colleges is race-based? It is an absolutely neutral policy that happens to address a need which is to integrate schools. But the reason why is it wrong to have a neutral policy is none of the policies that were imposed here and in most in all other cases are race-based. They are policies that are race-neutral but happen to have a better impact in terms of integration. Justice Sotomayor, 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 issues. Which is not the case for the 10 percent plan the Texas uses. Absolutely, Justice. There's no racial role in that. You're in fear of the top 10 percent of your high school class. You'll go to the State University. What was the reason? What was the reason for it? And it's, you can say it's a neutral. 10 percent is neutral. But it's just glaring face that the legislature that passed this was very much race-conscious. It was the way that they saw of getting minority population into colleges. I don't think there's really a doubt that actually that's what prompted the 10 percent plan when the University of Texas was told its affirmative action plan was no good. And then the legislature came back with the 10 percent plan. But there's a difference between that race-conscious decision-making. And here in a situation where liability is triggered based on statistical disparities, that's why the Watson plurality does this. Well, liability is not triggered. Well, it's a good word, but it's not imposed because of that. It's imposed because the lower court found, right? We are wrongly. I don't want to get into the merits of that. That some of the criteria being used was, were unnecessary. And that was, and there was no legitimate business reason for it. I could, as Justice Breyer 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 context? And that's why disparate impact liability can lead to the functional equivalent of a quota system. That's what the Watson plurality said. Ward's Cove and Justice Scalia's concurrence in reaching Mr. Chief Justice, so I could reserve the remainder of my time for rebuttal. Thank you, counsel. Mr. Daniel? Mr. Chief Justice, and may it please the Court. The remedy in this case is perfectly consistent with the interest in revitalizing low-income minority areas. The remedy in this case shows that there is nothing about the Fair Housing Act. We're not talking about this case. All right, why don't you get to the legal issue, if you can? The legal issue is unavailable. Unavailable is a result-oriented measure. You look to see how many units are available in an area you count them. That is a result. How many units are available in another area you count them? That's a result. It's clear from the Congressional record, Congress was worried and concerned about making units only available in low-income minority areas that it calls ghettos. 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 unavailable for racial reasons. And you're saying, no, it doesn't have to be. It could be unavailable simply because you use some other non-racial reason, which is stupid. That's your argument. If it produces a result that 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 arguing. The argument is that if in fact, racial discrimination is a foreseeable consequence of what someone is doing, and that racial disparity is not racial discrimination. The fact that the NFL is largely black players is not discrimination

. Discrimination requires intentionally excluding people of a certain race. It's really incursive. So let's not equate racial disparity with discrimination. The two are quite different. And what you're arguing here is that racial disparity is enough to make whatever the policy adopted unlawful. Right? No, Justice Scalia. That's not what the argument is. That's not what's in the regulations. The argument is 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. I start with the effects. Has there been an effect that is consistent with discrimination? In disparate impact, I then go on to the next step. Is there an interest that justifies the discriminatory effect? It could be the same discriminatory effect that was caused by intentional discrimination. Mr. Daniel, I had thought that Justice Scalia's question was whether the because of language precludes a disparate impact theory. In other words, whether the because of language signals that it has to have a certain kind of intent, which is not part of a disparate treatment, a disparate impact theory. And I would have thought that your main argument about that is, well, actually the court has held numerous times in the Title VII context, in the ADA context, in the Rehabilitation Act context, in the Emergency School Aid Act context, that that because of language can be read to include disparate impact claims, and that it's at least ambiguous as to whether it should be read so in this case as to this particular statute. I mean, is that the right to read that is something else? It's a basic argument on because of that it has been interpreted both ways. And in the Title VII and in Smith, it did not require proof of intent. In this case, I'm sorry if you want to make a complete your answer in Justice Scalia. No, it was not a hard question. Justice Justice. How is a housing authority supposed to, if you have a claim of disparate impact, how is a housing authority supposed to cure the alleged problem? Suming that you go through the steps and that there is, in fact, a need to cure the problem. You find, I'm sorry, you have made a showing of disparate impact that the impact has adverse consequences for a particular reason. What is the housing authority supposed to do at that point? That point, the housing authority, is to say, this is what interests we have that serve by the discriminatory practice causing the racial segregation. And they say, whatever that interest is, and they say that this is, this interest justifies our practice that 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. Is there a 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, to look at the race at all, you look at the practice causing it and you stop the practice like in this case. Or like this is all the same. In fact, the remedy, I mean, this is a case where there was a litigation you prevailed and there was a remedy. So there was disparate impact and what did the courts say had to be done to cure, to cure what it saw as the offense to the fair. Now, I think that. It had to stop the discriminatory housing practice. And then it had to, then it ordered in place the remedy suggested by the state that was, in fact, the less discriminatory alternatives for large extent to what they had been doing. There's no racial goals in it. There's no race conscious in it. There's no racial criteria in it. It is a, there is, and it is the remedy that the state says will work to stop the discriminatory practice. Could we back, could we go back to say, I think you've been interrupted. The steps are, first you show there's a, that the numbers are off. Then the other side tells you what the reason is for why the numbers are. You then have an opportunity or an obligation to come and suggest alternative methods of taking care of the legitimate business need, correct? Yes, Justice Sotomayor. So you, those are the three steps. Yes. If you can propose ways that are race neutral practices, that are race neutral, that will have a take care of their needs, meaning the other side's needs, then you get relief. And for example, one of the ways proposed was do not continue putting projects next to landfills and hazardous industrial uses. That was a bit. So we have a, a, a tension between two statutes here. I mean, how the fair housing act. And then there is the law that sets up this tax credit, right? And doesn't that law say that there should be a priority for revitalizing the king's communities? The law specifically 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 honored in the remedy and is in the remedy. And if you are, if the application is conserving, is contributing to a concerted community revitalization plan, just like in the IRS code, then it gets the same points as a project that is going to be in a higher income low poverty area with good school. I'm asking to get more if the tax law expresses that preference for the revitalization

. Is there a 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, to look at the race at all, you look at the practice causing it and you stop the practice like in this case. Or like this is all the same. In fact, the remedy, I mean, this is a case where there was a litigation you prevailed and there was a remedy. So there was disparate impact and what did the courts say had to be done to cure, to cure what it saw as the offense to the fair. Now, I think that. It had to stop the discriminatory housing practice. And then it had to, then it ordered in place the remedy suggested by the state that was, in fact, the less discriminatory alternatives for large extent to what they had been doing. There's no racial goals in it. There's no race conscious in it. There's no racial criteria in it. It is a, there is, and it is the remedy that the state says will work to stop the discriminatory practice. Could we back, could we go back to say, I think you've been interrupted. The steps are, first you show there's a, that the numbers are off. Then the other side tells you what the reason is for why the numbers are. You then have an opportunity or an obligation to come and suggest alternative methods of taking care of the legitimate business need, correct? Yes, Justice Sotomayor. So you, those are the three steps. Yes. If you can propose ways that are race neutral practices, that are race neutral, that will have a take care of their needs, meaning the other side's needs, then you get relief. And for example, one of the ways proposed was do not continue putting projects next to landfills and hazardous industrial uses. That was a bit. So we have a, a, a tension between two statutes here. I mean, how the fair housing act. And then there is the law that sets up this tax credit, right? And doesn't that law say that there should be a priority for revitalizing the king's communities? The law specifically 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 honored in the remedy and is in the remedy. And if you are, if the application is conserving, is contributing to a concerted community revitalization plan, just like in the IRS code, then it gets the same points as a project that is going to be in a higher income low poverty area with good school. I'm asking to get more if the tax law expresses that preference for the revitalization. Just against where it could, if the state set it up that way, the state just hasn't set it up that way. The state could set it up so that there's a pool of units that are going to be awarded projects and pick out of there and get preference to those concerted community revitalization plans. The district court found that the state did not do that. The state instead gave a two point one or two points selection criteria bonus for that kind of project. That's, that's, but that's a statement. Can you go back to Justice Scalia's question, please, as I took, because I just want to hear your answer to it. As I understood his question, it was you look at the words and the words say, 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 unavailable for a reason that has nothing to do with race. Where 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 it. That's the point. That you're saying those words are consistent with the longer phrase I just said. Okay. Is there a case law or other aside from this area, which builds your point and says, yes, those words linguistically and legally do include the disparate impact situation or can. And I could take it that's his question, and I was looking for an answer. And of course, somewhat along those lines. And this Court, the other answer. This Court's two major opinions on this are, of course, Griggs and Smith. The same issue was wrestled with with the other courts who have found the same thing and the courts have appeals. Wrestling with this because of, and it is at least admits that it is a, it's a permissible reading, either way. Well, in Smith, however, the Court, the plurality opinion, cited two additional things. It didn't just say because of, can mean disparate impact. It cited the effects language, which was the subject of some questioning during General Keller's argument, but it also cited the RFOA provision. Now, neither of those, I think the latter is more significant. And there's nothing like that in Title VIII, is there? The exemptions are similar in the fact that what those, they, the RFOA in Smith came in and basically said, even if you have disparate impact on these factors, if it's a reasonable factor other than age, we're going to excuse the disparate impact. Okay. Now, the exemptions speak to the disparate impact. And there's nothing in there that says that there's, you use it, rather than reason that you can excuse those don't count

. Just against where it could, if the state set it up that way, the state just hasn't set it up that way. The state could set it up so that there's a pool of units that are going to be awarded projects and pick out of there and get preference to those concerted community revitalization plans. The district court found that the state did not do that. The state instead gave a two point one or two points selection criteria bonus for that kind of project. That's, that's, but that's a statement. Can you go back to Justice Scalia's question, please, as I took, because I just want to hear your answer to it. As I understood his question, it was you look at the words and the words say, 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 unavailable for a reason that has nothing to do with race. Where 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 it. That's the point. That you're saying those words are consistent with the longer phrase I just said. Okay. Is there a case law or other aside from this area, which builds your point and says, yes, those words linguistically and legally do include the disparate impact situation or can. And I could take it that's his question, and I was looking for an answer. And of course, somewhat along those lines. And this Court, the other answer. This Court's two major opinions on this are, of course, Griggs and Smith. The same issue was wrestled with with the other courts who have found the same thing and the courts have appeals. Wrestling with this because of, and it is at least admits that it is a, it's a permissible reading, either way. Well, in Smith, however, the Court, the plurality opinion, cited two additional things. It didn't just say because of, can mean disparate impact. It cited the effects language, which was the subject of some questioning during General Keller's argument, but it also cited the RFOA provision. Now, neither of those, I think the latter is more significant. And there's nothing like that in Title VIII, is there? The exemptions are similar in the fact that what those, they, the RFOA in Smith came in and basically said, even if you have disparate impact on these factors, if it's a reasonable factor other than age, we're going to excuse the disparate impact. Okay. Now, the exemptions speak to the disparate impact. And there's nothing in there that says that there's, you use it, rather than reason that you can excuse those don't count. Is that critical to your argument that the exemptions are critical to your argument? We think the exemptions are tax that support the use of a disparate impact reliability. We think there's a lot of other things. The statutory construction used in congressional record, what Congress wanted to do, 36.01, which Congress passed to say, and has been used to give an expansive interpretation of matters of standing and enforcement. We think those, all of the tools of statutory construction combined to make it at least permissible. And therefore, giving due deference to the HUD regulation. If there was no disparate impact under the act as initially enacted, do you argue that the exemptions expanded the act so that it then as of 1988 included disparate impact? Well, if there was none then, there indicated that 1988 Congress thought there was. We don't think you can look at what Congress did in 1968 and say they did not intend to cover effects. They say it time and time again. Well, by that reason, really, my question, what Congress thought the act meant in 1988 wouldn't have any significant, wouldn't have much significance if they hadn't done anything, would it? I think they were doing it in 1988, that counts for 1988. We think it, and it's so dear. So did what they did the things that they actually did in 1988 expand the coverage of the act? No, just, we think that the coverage was already there in the 1968 act. When you look at all the tools, statutory construction, they all point in one direction, and that is to be at least a for this vote, if not the best interpretation in 1968, that Congress intended to cover effects 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, how it was brought about. It intended to end the effects of that. It said it again and again. We think that in 1988, it certainly recognized the disparate impact rule. It talked about the disparate impact rule in the courts of appeals. It knew it was there. It was being done in the context of those courts of appeals. There you go. No further questions? Thank you, counsel. General Verily? Mr. Chief Justice, and may it please the Court, the statutory provisions that most clearly show that HUD's disparate impact regulations are a permissible interpretation of the Fair Housing Act are the three exemptions. Those exemptions presuppose the existence of disparate impact liability and serve no real purpose without them, without disparate impact liability. And the provenance of those exemptions lends particularly strong support for the reasonableness of HUD's reading. They were added by amendment in 1988 at a time when nine, I think the number is nine, courts of appeals, had ruled that the Fair Housing Act authorized disparate impact

. Is that critical to your argument that the exemptions are critical to your argument? We think the exemptions are tax that support the use of a disparate impact reliability. We think there's a lot of other things. The statutory construction used in congressional record, what Congress wanted to do, 36.01, which Congress passed to say, and has been used to give an expansive interpretation of matters of standing and enforcement. We think those, all of the tools of statutory construction combined to make it at least permissible. And therefore, giving due deference to the HUD regulation. If there was no disparate impact under the act as initially enacted, do you argue that the exemptions expanded the act so that it then as of 1988 included disparate impact? Well, if there was none then, there indicated that 1988 Congress thought there was. We don't think you can look at what Congress did in 1968 and say they did not intend to cover effects. They say it time and time again. Well, by that reason, really, my question, what Congress thought the act meant in 1988 wouldn't have any significant, wouldn't have much significance if they hadn't done anything, would it? I think they were doing it in 1988, that counts for 1988. We think it, and it's so dear. So did what they did the things that they actually did in 1988 expand the coverage of the act? No, just, we think that the coverage was already there in the 1968 act. When you look at all the tools, statutory construction, they all point in one direction, and that is to be at least a for this vote, if not the best interpretation in 1968, that Congress intended to cover effects 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, how it was brought about. It intended to end the effects of that. It said it again and again. We think that in 1988, it certainly recognized the disparate impact rule. It talked about the disparate impact rule in the courts of appeals. It knew it was there. It was being done in the context of those courts of appeals. There you go. No further questions? Thank you, counsel. General Verily? Mr. Chief Justice, and may it please the Court, the statutory provisions that most clearly show that HUD's disparate impact regulations are a permissible interpretation of the Fair Housing Act are the three exemptions. Those exemptions presuppose the existence of disparate impact liability and serve no real purpose without them, without disparate impact liability. And the provenance of those exemptions lends particularly strong support for the reasonableness of HUD's reading. They were added by amendment in 1988 at a time when nine, I think the number is nine, courts of appeals, had ruled that the Fair Housing Act authorized disparate impact. And they were added to provide defenses to exemptions from, they're labeled as exemptions from, carveouts from, disparate impact liability. So you've got to think your case would be stronger if there had been no court of appeals that had favored disparate impact. Then you couldn't possibly argue well, that was put in just to eliminate the erroneous judgments of these courts of appeals in certain areas anyway. It'd be better if no court of appeal had said that. Congress had enacted this. I actually think it's better the way it happened for our case because of the reenactment cannon. You have Section 805 of this law was reenacted against the backdrop, so you have the reenactment of those nine court of appeals as you say. You have the reenactment cannon and you have the cannon against the presumption against the Purple Lewis amendments both working. And remember we're in Chevron territory here, so the question is whether the statutory text unambiguously for closes HUD's interpretation. What's one good question? One concern about disparate impact is that it's very difficult to decide what impact is good and bad. Take two proposals. One is a proposal to build new housing in a low-income area with benefit primarily minorities. New housing, good thing. 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 the impact, the one that is revitalizing a low-income area or 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 1988 amendments I would add with interpreting and enforcing these provisions has concluded that disparate impact is the right policy judge. No, no, but which counts? I mean, which benefits you're trying to see if there's a disparate impact on minorities? It may give the proposal to the low-income housing in the affluent neighborhood that certainly benefits integration. If you give the proposal, 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 practice or criterion being applied. And what is the practice here? Because that was the question that's- Well, you know, that's a very good question if I may just answer Justice Ginsburg. I'll come back and finish my answer to you, Mr. Chief Justice. That the- That's a very good point, Justice Ginsburg

. And they were added to provide defenses to exemptions from, they're labeled as exemptions from, carveouts from, disparate impact liability. So you've got to think your case would be stronger if there had been no court of appeals that had favored disparate impact. Then you couldn't possibly argue well, that was put in just to eliminate the erroneous judgments of these courts of appeals in certain areas anyway. It'd be better if no court of appeal had said that. Congress had enacted this. I actually think it's better the way it happened for our case because of the reenactment cannon. You have Section 805 of this law was reenacted against the backdrop, so you have the reenactment of those nine court of appeals as you say. You have the reenactment cannon and you have the cannon against the presumption against the Purple Lewis amendments both working. And remember we're in Chevron territory here, so the question is whether the statutory text unambiguously for closes HUD's interpretation. What's one good question? One concern about disparate impact is that it's very difficult to decide what impact is good and bad. Take two proposals. One is a proposal to build new housing in a low-income area with benefit primarily minorities. New housing, good thing. 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 the impact, the one that is revitalizing a low-income area or 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 1988 amendments I would add with interpreting and enforcing these provisions has concluded that disparate impact is the right policy judge. No, no, but which counts? I mean, which benefits you're trying to see if there's a disparate impact on minorities? It may give the proposal to the low-income housing in the affluent neighborhood that certainly benefits integration. If you give the proposal, 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 practice or criterion being applied. And what is the practice here? Because that was the question that's- Well, you know, that's a very good question if I may just answer Justice Ginsburg. I'll come back and finish my answer to you, Mr. Chief Justice. That the- That's a very good point, Justice Ginsburg. And we're- You know, although we are here defending HUD's interpretation and we think the answer to the question presented is yes, that 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 her concurrence because it's not clear to us what specific practice that the State Agency has engaged in here that would justify the finding of disparate impact liability and one thing that was suggested as maybe that could be dealt with on remand from the District Court. And I do think that's- And that's 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 does it set out as a reverse test? Well, with respect, I don't think that's responsive. You say you look at which provision is having the disparate impact. But I still don't understand which is the disparate impact. Well, in other words, is it the provision that causes more proposals to go to low income housing in the afloat area or is it the provision that causes more approval of more proposals in the low income area? You've got to know what you're shooting at before you can tell if- And the- Well, the disparate impact- The disparity tied to a particular practice is just the first step in the analysis. The second step in the analysis is justification. What's the justification? So I- And I'll- Just ask for the last time and then let you get on. You're saying you need the justification, but for what? Which is the bad thing to do? Not promote better housing in the low income area or not promote housing integration? No, it may say 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 the- The government may say in the first case, well, this is our justification, and that may be a justification that holds up. The government may say in the second case, well, that's our justification, and 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 affluent neighborhood? No, certainly not. He's permitted to develop his property, right? Yes, of course, and there are- I thought that- The disparate impact would be if he fails to sell or make available to people of all races, let's say, the units in that property, correct? There's got to be a specific practice, all right? And that's a specific practice. That's just the first state- That has a- Is this- Is this- That ought to be unjustified? Exactly. That's the- I thought the question was though, I mean, it's not a developer. It's the Department of Housing and Community Affairs, and I thought the challenge went to where they were- Where they were supporting development. Well, this may- This may not be a good disparate impact claim, Mr. Chief Justice, but the cases that are in the heartland are really pretty straightforward. But are you saying that in each case that the Chief Justice puts, there is initially a disparate impact at step one? That is to say, community A wants the- Development to be in the suburbs. And the next state, the community wants it to be in the poor neighborhood. If your position, it seems to me, and the position of the respondents, then either case, step one has been satisfied. That may be right, Justice Kennedy, but I think the point- That seems very odd to me. There are 35 or 40 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- I asked a question, I'm sorry, about Chevron. Should we be concerned here about the use of Chevron to manipulate the decisions of this Court? Fair Housing Act was enacted in 1968. For 40 years, plus, there were no HUD regulations. Then we granted cert in the Gallagher case

. And we're- You know, although we are here defending HUD's interpretation and we think the answer to the question presented is yes, that 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 her concurrence because it's not clear to us what specific practice that the State Agency has engaged in here that would justify the finding of disparate impact liability and one thing that was suggested as maybe that could be dealt with on remand from the District Court. And I do think that's- And that's 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 does it set out as a reverse test? Well, with respect, I don't think that's responsive. You say you look at which provision is having the disparate impact. But I still don't understand which is the disparate impact. Well, in other words, is it the provision that causes more proposals to go to low income housing in the afloat area or is it the provision that causes more approval of more proposals in the low income area? You've got to know what you're shooting at before you can tell if- And the- Well, the disparate impact- The disparity tied to a particular practice is just the first step in the analysis. The second step in the analysis is justification. What's the justification? So I- And I'll- Just ask for the last time and then let you get on. You're saying you need the justification, but for what? Which is the bad thing to do? Not promote better housing in the low income area or not promote housing integration? No, it may say 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 the- The government may say in the first case, well, this is our justification, and that may be a justification that holds up. The government may say in the second case, well, that's our justification, and 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 affluent neighborhood? No, certainly not. He's permitted to develop his property, right? Yes, of course, and there are- I thought that- The disparate impact would be if he fails to sell or make available to people of all races, let's say, the units in that property, correct? There's got to be a specific practice, all right? And that's a specific practice. That's just the first state- That has a- Is this- Is this- That ought to be unjustified? Exactly. That's the- I thought the question was though, I mean, it's not a developer. It's the Department of Housing and Community Affairs, and I thought the challenge went to where they were- Where they were supporting development. Well, this may- This may not be a good disparate impact claim, Mr. Chief Justice, but the cases that are in the heartland are really pretty straightforward. But are you saying that in each case that the Chief Justice puts, there is initially a disparate impact at step one? That is to say, community A wants the- Development to be in the suburbs. And the next state, the community wants it to be in the poor neighborhood. If your position, it seems to me, and the position of the respondents, then either case, step one has been satisfied. That may be right, Justice Kennedy, but I think the point- That seems very odd to me. There are 35 or 40 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- I asked a question, I'm sorry, about Chevron. Should we be concerned here about the use of Chevron to manipulate the decisions of this Court? Fair Housing Act was enacted in 1968. For 40 years, plus, there were no HUD regulations. Then we granted cert in the Gallagher case. And it was only after that, and within, I think, days after that, that the HUD regulations were issued. And then the Gallagher case settled, and then we granted cert in the Mount Holly case, and the Mount 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 formal adjudications reviewed by the Secretary has found disparate impact liability available under these provisions, and the Fair Housing Act since 1992, 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 the first case, the Gallagher case. A second, and I don't mean to be flip about it, because I understand the import of your honor's question. But I do think it overestimates the efficiency of the government to think that we forget, and I was supposed to be making an issue like this out within seven days. It was a coincidence. That's very persuasive. Very good. I really, and so I don't, I think actually this has been the position of HUD for a very long time, and you would get Chevron deference for the adjudications. I think that's pretty clear, wholly apart from the reg, but we do have the reg now, and I do think it gets Chevron deference. 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. Whatever one might think in the Title VII context about the consequences of finding a disparate impact liability, this is a very different context. In the Title VII context, the issue has been raised, is that the only way to avoid disparate 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 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. The consequence in those cases 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 of race. What will you select depends on what effect that will have on racial use of the physical? I think the consequence, no, I think, just as we would like to look at this, on the basis of what effect it will have on race. Well, but that kind of consideration, so long as the rule that comes later is a race-neutral rule, seems to me, is exactly the kind of thing that the plurality opinion of this Court in Crocent said in the contracting context that governments could do. They couldn't afford a preference to minority contractors, but they could do such things. The Court suggested 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. Do not underscore that

. And it was only after that, and within, I think, days after that, that the HUD regulations were issued. And then the Gallagher case settled, and then we granted cert in the Mount Holly case, and the Mount 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 formal adjudications reviewed by the Secretary has found disparate impact liability available under these provisions, and the Fair Housing Act since 1992, 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 the first case, the Gallagher case. A second, and I don't mean to be flip about it, because I understand the import of your honor's question. But I do think it overestimates the efficiency of the government to think that we forget, and I was supposed to be making an issue like this out within seven days. It was a coincidence. That's very persuasive. Very good. I really, and so I don't, I think actually this has been the position of HUD for a very long time, and you would get Chevron deference for the adjudications. I think that's pretty clear, wholly apart from the reg, but we do have the reg now, and I do think it gets Chevron deference. 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. Whatever one might think in the Title VII context about the consequences of finding a disparate impact liability, this is a very different context. In the Title VII context, the issue has been raised, is that the only way to avoid disparate 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 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. The consequence in those cases 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 of race. What will you select depends on what effect that will have on racial use of the physical? I think the consequence, no, I think, just as we would like to look at this, on the basis of what effect it will have on race. Well, but that kind of consideration, so long as the rule that comes later is a race-neutral rule, seems to me, is exactly the kind of thing that the plurality opinion of this Court in Crocent said in the contracting context that governments could do. They couldn't afford a preference to minority contractors, but they could do such things. The Court suggested 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. Do not underscore that. Those, I think everybody is getting confused with this. Disprid impact does not go to who they take unless they set up a practice. That's correct. That's correct. In the Heartland cases with respect to the Fair Housing Act, the kinds of remedies that are going on in Justice Kennedy, they're like the kinds of race-neutral considerations that Your Honor's opinion and parents and parents have come on. What you're saying is, suppose that the plaintiffs, in this case, that side wins to try to try to win. The defense on the, it's not true that that means all section 8 housing is now going to be even a large amount, it's going to be put in rich neighborhoods. First, they can defend on the ground that we don't have that practice to put it in poor neighborhoods. Second, they can say, yes, we do, but don't you see that isn't going to hurt minorities because it puts those 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 save it anyway, it's justified for a whole bunch of reasons. Yes. So the answer is case by case, they have a specific set of forms that give answers and judges judge it and HUD can come in and decide. And there is no need to throw the whole baby out. I don't know whether it's the baby with the bath water or whatever you're throwing out. But you don't have to throw out the whole big thing in order to prevent. So just, I can understand because again, I don't know what you're shooting for. Two different communities, okay? 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. And the one they say, oh, no, no, this is good because we're promoting integration. So the impact on the minorities is not a problem. And the other says, no, this is good because we're revitalizing low-income neighborhoods and that helps the minorities. They both win. Am I both win? Yes. And if I could just, I just want to finish up on the constitutional avoidance point, if I could connect something just as far as I say. If there are particular instances in which there is a concern that the recognition of disparate impact liability could result in not just race-based thinking about neutral means, but race-based remedies

. Those, I think everybody is getting confused with this. Disprid impact does not go to who they take unless they set up a practice. That's correct. That's correct. In the Heartland cases with respect to the Fair Housing Act, the kinds of remedies that are going on in Justice Kennedy, they're like the kinds of race-neutral considerations that Your Honor's opinion and parents and parents have come on. What you're saying is, suppose that the plaintiffs, in this case, that side wins to try to try to win. The defense on the, it's not true that that means all section 8 housing is now going to be even a large amount, it's going to be put in rich neighborhoods. First, they can defend on the ground that we don't have that practice to put it in poor neighborhoods. Second, they can say, yes, we do, but don't you see that isn't going to hurt minorities because it puts those 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 save it anyway, it's justified for a whole bunch of reasons. Yes. So the answer is case by case, they have a specific set of forms that give answers and judges judge it and HUD can come in and decide. And there is no need to throw the whole baby out. I don't know whether it's the baby with the bath water or whatever you're throwing out. But you don't have to throw out the whole big thing in order to prevent. So just, I can understand because again, I don't know what you're shooting for. Two different communities, okay? 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. And the one they say, oh, no, no, this is good because we're promoting integration. So the impact on the minorities is not a problem. And the other says, no, this is good because we're revitalizing low-income neighborhoods and that helps the minorities. They both win. Am I both win? Yes. And if I could just, I just want to finish up on the constitutional avoidance point, if I could connect something just as far as I say. If there are particular instances in which there is a concern that the recognition of disparate impact liability could result in not just race-based thinking about neutral means, but race-based remedies. 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 denying HUD the authority that we submit that HUD has under the regulations under the statute as amended in 1988, when Congress specifically gave HUD the authority to interpret these provisions and did so against the backdrop of imposing the exemptions which presuppose 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 Chevron, Chevron, the statutory text red-fairly in 1988 taking all provisions of the statute together unambiguously for closes HUD from finding disparate impact liability here. And we assume that we submit that the answer to that question must be no. It does not unambiguously for bid HUD from reaching the conclusion it reached. And therefore the answer to the question presented in this case, which is whether the Fair Housing Act recognizes disparate impact liability is yes. And General, could I just ask, I don't know a lot about this area, 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 a few times to sort of the heartland cases without really getting out what the heartland cases are. So for me, what are you? Sure. You have the kind of, man, I ask some questions, Chief Justice. Thank you. The kinds of cases have been litigated, and you've seen the course of opinion, a quarter of appeals opinions for 35 years. Restrictions say a town adopts a restriction saying, you can't convert housing from ownership to rental unless you're renting to 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, if the families with kids aren't going to be able to live there, that disproportionately affects minority groups with kids. 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 to your question is both would open up liability for disparate impact. Here, the department could have faced disparate impact liability if it was going to take tax credits and send them to lower income neighborhoods or more affluent neighborhoods. Even if you're saying that, but that's not what happened here. The remedy was not to tell you to move your development from one area to another. The remedy here was, it did preclude development next to landfills, but it also, included other tinkering with the qualifications, but you're going to still meet people who want to do. Thanks. But in the remedy in this case, the district department, they want to do. Capt it and retain jurisdiction for five years, so even if the disparities in the neighborhood

. 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 denying HUD the authority that we submit that HUD has under the regulations under the statute as amended in 1988, when Congress specifically gave HUD the authority to interpret these provisions and did so against the backdrop of imposing the exemptions which presuppose 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 Chevron, Chevron, the statutory text red-fairly in 1988 taking all provisions of the statute together unambiguously for closes HUD from finding disparate impact liability here. And we assume that we submit that the answer to that question must be no. It does not unambiguously for bid HUD from reaching the conclusion it reached. And therefore the answer to the question presented in this case, which is whether the Fair Housing Act recognizes disparate impact liability is yes. And General, could I just ask, I don't know a lot about this area, 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 a few times to sort of the heartland cases without really getting out what the heartland cases are. So for me, what are you? Sure. You have the kind of, man, I ask some questions, Chief Justice. Thank you. The kinds of cases have been litigated, and you've seen the course of opinion, a quarter of appeals opinions for 35 years. Restrictions say a town adopts a restriction saying, you can't convert housing from ownership to rental unless you're renting to 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, if the families with kids aren't going to be able to live there, that disproportionately affects minority groups with kids. 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 to your question is both would open up liability for disparate impact. Here, the department could have faced disparate impact liability if it was going to take tax credits and send them to lower income neighborhoods or more affluent neighborhoods. Even if you're saying that, but that's not what happened here. The remedy was not to tell you to move your development from one area to another. The remedy here was, it did preclude development next to landfills, but it also, included other tinkering with the qualifications, but you're going to still meet people who want to do. Thanks. But in the remedy in this case, the district department, they want to do. Capt it and retain jurisdiction for five years, so even if the disparities in the neighborhood. That has to go with your attacks on the remedy. That doesn't have anything to do with what disparate impact as an approach set out by HUD, direct should be done. And each regulated entity is going to have to examine the racial outcomes of their policies and every zoning decision paid in every raising range. 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 department is. It's only if the other side proves that a qualification has an erasifet that's not necessary. Can they win? And here the department engaged in raised neutral policies, Justice Alito, to your point about Smith and the ADA's reasonable factors other than age exemption. There are three things to distinguish that from this case. First, there's an important textual difference. The ADA's reasonable factor other than age provision referred to actions otherwise prohibit. And the court in Smith interpreted that as recognizing the disparate impact liability could lie under the ADA. In the fair housing, we don't have that language. The exemption say nothing in the FHA prohibits or limits. So this is truly a safe harbor. Second, Smith already noted that the ADA used adversely effect. And third, Smith did involved race. And so no constitutional avoidance can and would have applied there. And on constitutional avoidance, the reason we're here today is because the Texas department did not use race-based decision making. Take a hypothetical from Grootr. If the University of Michigan had said the incoming class must have 30% of its incoming class of a certain race. And we prefer that race conscious or race neutral means we're used to do that. But if those are not available, race-based means must be used. That would be suspect at the very least. All we need to show is a constitutional doubt for the constitutional avoidance can and to apply for a reason. So what did the Ricci say that there was one? What in the remedy ordered here was race-based. What remedy said you have to take in 10, 20, 15%

. The particular remedy here wasn't race-based, but the 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. Chief Justice. Thank you, Council. The case is submitted