Yesterday, the U.S. Supreme Court agreed for the third time in recent history to decide whether disparate impact claims are cognizable under the Fair Housing Act (FHA). The Supreme Court granted the Texas Department of Housing and Community Affairs' (Texas DHCA) petition for writ of certiorari, which was filed earlier this year after the Fifth Circuit recognized the disparate impact theory in a claim alleging that the disproportionate denial of low-income housing tax credits in nonminority, affluent neighborhoods was discriminatory.

The Texas DHCA will now file a merits brief, and the respondent, the Inclusive Communities Project, will have an opportunity to respond. Nonparties with an interest in the litigation may also file amicus briefs. This is the third time since 2012 that the Supreme Court has agreed to hear a case presenting the issue of whether disparate impact claims are cognizable under the FHA. The two prior cases were both settled before oral argument. If the case follows the usual course, oral argument will most likely be held in early 2015, with a Supreme Court decision by the end of June.