Disparate impact theory is a vital tool for fair housing advocates. It allows them to challenge institutional behaviors that harm minority groups and municipal practices that perpetuate long-standing segregated patterns, without having to go through the difficult process of identifying a specific bad actor with explicitly discriminatory motives. Disparate impact theory has been a failure for fair housing advocates. It is overly complicated, infrequently used, and seldom leads to plaintiff success. Moreover, the availability of this theory has led to the underdevelopment of the law surrounding intentional discrimination, which has ultimately made all cases with circumstantial evidence more difficult to prove. According to respected commentators, all of the previous statements are true. Suffice it to say, this theory is one of the most theoretically significant, misunderstood, and controversial doctrines to arise in the area of antidiscrimination law. There is now a greater urgency to this debate, because disparate impact theory in the fair housing context is facing an existential threat: The Supreme Court is currently considering whether disparate impact theory is cognizable under the Fair Housing Act. Through this essay, I seek neither to praise disparate impact theory nor to bury it. Rather, I endeavor to make use of this particular legal moment to interrogate the doctrine and its application to fair housing cases. I begin with the assumption that disparate impact theory in housing is destined either for extinction or to continue on its current underperforming state. In light of these two, unsatisfactory outcomes, we must ask: What benefits does disparate impact add? If it is not achieving its hoped-for results, how can it be improved? If it is to be eliminated, how can advocates achieve these benefits through other means? Put another way: How can fair housing advocates move beyond disparate impact, at least as it currently exists?
Rigel C. Oliveri, Beyond Disparate Impact: How the Fair Housing Movement Can Move on, 54 Washburn L.J. 625 (2015)