Eight leading housing associations have banded together to file an amicus brief in a much-anticipated Supreme Court case involving the low-income housing tax credit (LIHTC) program in Texas.

The associations say the top court should conclude that the Fair Housing Act does not recognize disparate impact liability.

The organizations filing the brief are the National Leased Housing Association, National Multifamily Housing Council, National Apartment Association, National Association of Housing and Redevelopment Officials, National Association of Residential Property Managers, Public Housing Authorities Directors Association, National Affordable Housing Management Association, and Council for Affordable and Rural Housing.

The case stems from a lawsuit filed by Dallas-based Inclusive Communities Project (ICP) against the Texas Department of Housing and Community Affairs. ICP claims that the agency discriminated based on race by disproportionately approving LIHTC developments in predominantly minority neighborhoods and disproportionately denying LIHTC developments in predominantly Caucasian neighborhoods.

The Supreme Court will decide whether the disparate impact theory can be used in claims made under the Fair Housing Act. In general, disparate impact is when a policy that may appear to be neutral has a discriminatory effect on a group based on race, sex, age, or disability.

The use of disparate impact liability would mean that established practices may now be at risk of violating the Fair Housing Act, according to the associations, which raise concerns about the use of criminal background screening and Sec. 8 policies and practices.

They say there are state and municipal laws that encourage or require criminal background checks of prospective tenants. In addition, apartment owners who participate in federal housing programs are required to refuse admission to tenants who have records of crime or drug use or engage in criminal activity while tenants.

“Disparate impact liability casts doubt on the legality of criminal background screening because it raises the possibility that such screening will unintentionally result in the exclusion of a disproportionate number of individuals from protected classes” under the Fair Housing Act, says the brief.