On Monday, June 17, we expect the U.S. Supreme Court to announce whether it will grant the petition for certiorari in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. The petition is among the certiorari petitions slated to be considered by the Justices at their conference today. The court’s standard procedure is to announce the results of its Thursday conferences on the following Monday at 10 am.
The case challenges the validity of HUD’s interpretation that disparate impact can be used to establish liability under the Fair Housing Act (FHA), even if there is no discriminatory intent. The CFPB has taken the position that a violation of the Equal Credit Opportunity Act (ECOA) and Regulation B, which apply to all types of credit, including mortgage lending, student loans, auto loans and credit cards, can similarly be established through evidence of disparate impact. Since both the FHA and ECOA lack textual support for use of a disparate impact test, if the Supreme Court agrees to hear Mt. Holly, its ultimate ruling will have significant implications for the validity of the CFPB’s position.