The Township of Mount Holly and other petitioners for certiorari in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. filed a brief on May 24, 2013 in the U.S. Supreme Court replying to the brief filed by the Solicitor General. On May 17, the Solicitor General, having been invited to do so by the court, filed a brief expressing the views of the United States on whether the court should grant the petition for certiorari. The Solicitor General’s brief predictably opposed the petition.
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. According to SCOTUSblog, now that the briefing is complete, the petition will be considered by the Supreme Court Justices at their June 13 conference.
In their reply brief, the petitioners argue that there is no ambiguity in the FHA on the availability of disparate impact liability and, since HUD’s interpretation is not a permissible interpretation, it is not entitled to Chevron deference. The petitioners characterize HUD’s interpretation as “codif[ying] the judicial case law of the Circuit Courts in an effort to forestall Supreme Court review on this issue.” They also challenge the Solicitor General’s argument that HUD’s rule establishes a uniform framework for analyzing disparate impact claims. According to the petitioners, “[a]ll the HUD regulations do is establish a generic burden-shifting framework for the Courts to apply. They do not establish any evidentiary standard for evaluating statistical evidence of disparate impact.”