The Center for Equal Opportunity recently submitted a comment supporting the Department of Housing and Urban Development’s (HUD) proposed rulemaking on applying disparate impact liability in HUD’s enforcement of the Fair Housing Act. CEO’s comment addressed the impact a recent Supreme Court case, Ames v. Ohio Dep’t of Youth Servs, should have on our understanding of the application of disparate impact liability. Namely, that disparate impact liability makes little sense when our laws set out to protect all Americans’ civil rights equally, and does not allow for a separate standard to apply for those in the majority versus those in the minority.
The full CEO comment below:
Center for Equal Opportunity submits this comment in support of the U.S. Department of Housing and Urban Development’s (“HUD”) Notice of Proposed Rulemaking regarding the removal of HUD’s Fair Housing Act’s (“FHA”) discriminatory effects regulations from the Code of Federal Regulations.
The Center for Equal Opportunity was founded in 1995 to fight racial preferences and promote a race-blind America. CEO’s studies of racial preferences in college admissions at more than 80 colleges and universities helped lay the groundwork for litigation, led to nine statewide initiatives to ban preferences, and, most importantly, shaped public opinion on the issue. CEO has long opposed disparate impact and contributes this comment to explain how recent case law calls into question the use of disparate impact.
In Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), the Supreme Court unanimously rejected the notion that civil rights law permits different legal standards depending on whether a plaintiff belongs to a “majority” or “minority” group. The Court emphasized that antidiscrimination statutes protect individuals from discrimination on the basis of protected status equally, whether they are the member of a majority or minority: “By establishing the same protections for every ‘individual’ – without regard to that individual’s membership in a minority or majority group – Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” Ames at 310.
This stands in contrast to the foundational premise of Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015) and Ricci v. DeStefano, 557 U.S. 557 (2009). Inclusive Communities relies on Ricci for the premise that a disparate impact analysis should proceed from an analysis of the impact that a policy has on the one hand, on the majority group, and on the other hand, minorities generally. Inclusive Communities at 577. But this analysis, and its presumption that policies are lawful when they harm a majority but are only called into question when they harm a minority, is exactly what Ames disclaimed. The doctrine therefore embeds a majority–minority duality into the understanding of liability itself, which post-Ames, cannot stand.
The Supreme Court’s decision in Inclusive Communities is simply not consistent with the framework in Ames. The alleged injury in Inclusive Communities was not that any individual applicant was denied housing because of race, but rather, plaintiffs claimed that housing tax credits were allocated more frequently in predominantly minority neighborhoods than in predominantly majority (here, white) neighborhoods. The alleged harm could only be described through a comparison between minority and majority neighborhoods, and not from identifying discriminatory treatment of individual plaintiffs on the basis of their protected characteristics.
That framing presupposes that a neighborhood’s status as a “minority” neighborhood creates legal rights to challenge a policy that “majority” neighborhoods would not have. After Ames, that premise cannot stand. Civil rights law does not recognize “minority neighborhoods” and “majority neighborhoods” as opposing legal interests. It recognizes individuals, and it prohibits discrimination against them. HUD should not continue to administer the FHA through a framework that the Supreme Court has now rejected in principle.
Agencies are not required to perpetuate regulatory interpretations that rest on doctrinal foundations the Supreme Court has since undermined. Ames represents a clear reaffirmation of textualism, symmetry, and individual rights in civil rights law. HUD’s disparate impact regulations cannot be reconciled with those principles. At minimum, Inclusive Communities must now be understood as limited to its facts and dependent on assumptions the Court no longer accepts.
