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Note: Inclusive Communities and Robust Causality: The Constant Struggle to Balance Access to the Courts with Protection for Defendants

By Claire Williams. Full text here.

Access to housing has been a central issue throughout much of the United States’ history. Both government and private actors furthered and reinforced segregated and substandard housing for people of color. From the time of its passage, the Fair Housing Act and antidiscrimination litigation has been an important tool for parties to combat the legacy of past discrimination, as well as continuing discrimination in housing. The Supreme Court has recently added to that toolbox by extending disparate impact liability to cases brought under the Fair Housing Act, but it also introduced a robust causality standard as a check on disparate impact.

This Note argues that the robust causality standard should be abandoned because it is an unnecessary and redundant standard, given the protections for defendants that are already in place for disparate impact litigation. Robust causality is in conflict with Supreme Court precedent and fundamental principles of pleading, and lacks sufficient guidance to assist lower courts in reconciling the new standard with the existing principles of pleading doctrine. Additionally, the practical underpinnings of robust causality is designed to give deference to housing decisions made by zoning and other government officials, but those are precisely the actors who continue trends in housing segregation. Instead of relying on robust causality, courts should use the current tests and frameworks that apply to disparate impact litigation in other discrimination lawsuits. Those principles already provide sufficient doctrinal and practical protection for defendants, leading to many disparate impact suits being dismissed early in litigation.

While the robust causality standard may have been prompted by a desire to prevent perverse outcomes under the Fair Housing Act, where landlords could use disparate impact litigation to escape their responsibilities to provide adequate housing, disparate impact litigation should not be curtailed by introducing a robust causality standard because it is still an important tool in dismantling barriers to discrimination-free housing.