The Radical Fair Housing Act

*Thank you to Anna Arons, Greg Baltz, Vicki Been, Edith Beerdsen, Maureen Carroll, Travis Crum, Ingrid Gould Ellen, Zachary Fasman, Rigel Oliveri, Richard Primus, Margo Schlanger, Gil Seinfeld, Roseanna Sommers, Daniel Wilf-Townsend, and participants in the NYU Lawyering Scholarship Colloquium, the Michigan Legal Theory Workshop, and the State and Local Government Works in Progress Conference, all of whose comments immeasurably improved this Article. Lauren Week provided invaluable research assistance on legislative history.Show More

This Article uncovers the radical logic at the core of the Fair Housing Act (“FHA”). It is a law which can question and remake the underlying structure of housing markets, not just police individual transactions within those markets.

The FHA is conventionally held to use the same understanding of “discrimination” as the Civil Rights Act’s prohibition on employment discrimination. But it does not. The law of employment discrimination limits its scrutiny to the matching of people to jobs; it takes both the jobs on offer and people’s qualifications as given. The Fair Housing Act, in contrast, also scrutinizes markets as a whole. It asks whether the set of housing opportunities available has been constructed discriminatorily, and it asks whether households can secure the qualifications necessary to acquire better housing. The FHA, this Article shows, offers its own distinctive theory of antidiscrimination.

This structural understanding of discrimination is not always—or even usually—vindicated in fair housing law, but neither is it some peripheral feature, limited to outlier cases or special provisions. It has been hidden in plain sight: visible in archetypal fair housing cases, which have been successful since the FHA’s enactment and are brought under the FHA’s core antidiscrimination provisions. Moreover, the FHA’s market-level analysis is firmly rooted in the statute’s text and purpose. It is an intentional congressional response to the particular challenges of tackling housing discrimination. This Article identifies the FHA’s radical approach, as well as the statutory mechanisms through which that approach is operationalized. In so doing, it also re-situates the FHA within the larger landscape of civil rights law.

For all the Fair Housing Act’s many weaknesses, for all its ineffectiveness in practice, the Act has always had radical ambitions. If those ambitions are recognized, they can, perhaps, be built upon.

Introduction

The standard narrative of the Fair Housing Act (“FHA” or “the Act”) is of timidity and failure. The Act was hobbled from the start by intentionally toothless enforcement provisions.¹ 1.Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247, 248–49 (2016) [hereinafter Zasloff, Secret History] (describing conventional wisdom that the FHA was intentionally weak); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1205–07 (2011) (detailing the FHA’s original enforcement scheme).Show MoreIt was crafted primarily to overcome overt discrimination, especially against members of the middle class, leaving it incapable of achieving its more ambitious anti-segregation goals.² 2.Wendell E. Pritchett, Where Shall We Live? Class and the Limitations of Fair Housing Law, 35 Urb. Law. 399, 401 (2003).Show MoreHousing discrimination remains pervasive, and segregation appears intractable.³ 3.See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (describing the perpetuation and harmful effects of extreme segregation).Show MoreAll of this is true, at least to some extent.⁴ 4.But see Richard H. Sander, Yana A. Kucheva & Jonathan M. Zasloff, Moving Toward Integration: The Past and Future of Fair Housing 145–52 (2018) (providing a revisionist take on the FHA’s strength).Show More

But in cataloguing the all-too-real weaknesses of the Fair Housing Act, legal scholars have overlooked a remarkable strength. For all its flaws, the FHA contains a radical core. The FHA—unlike the employment discrimination statutes on which it is based—is committed not only to opening existing opportunities to people regardless of race, sex, or other protected status, but also to creating those opportunities. It can make more, different kinds of housing available for those who are poorly served by normative housing models. And it can protect against discrimination not just in the acquisition of housing, but in obtaining the additional qualifications needed to secure the kind of housing one wants. The Act contemplates, at least sometimes, a restructuring of housing markets, not just the policing of housing transactions. And it holds all of society, across the public and private sectors, potentially responsible for effecting that restructuring.

To be clear, this Article does not argue that the FHA could or should understand discrimination expansively. The FHA has always been understood as structural. The Act’s distinct theory of discrimination is written into the text of the statute and has been consistently implemented by courts. Nor does the Article rely on the FHA’s unique but poorly enforced mandate for governments “affirmatively to further” fair housing, a provision on which many scholars have pinned hopes for a more ambitious approach to fair housing.⁵ 5.Johnson, supra note 1, at 1193–94; David D. Troutt, Inclusion Imagined: Fair Housing as Metropolitan Equity, 65 Buff. L. Rev. 5, 8 (2017); Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 8–9 (2020).Show MoreIts focus is on the Act’s core antidiscrimination provisions. The FHA’s breadth is in its basics, not just at its frontiers.

To demonstrate the FHA’s unappreciated strength, this Article compares the Act to Title VII’s ban on employment discrimination.⁶ 6.Throughout, this Article compares the FHA and Title VII’s treatment of discrimination on the basis of race, sex, and other protected characteristics. Each statute also has separate provisions applying a different “reasonable accommodations” standard for certain protected characteristics: religion in Title VII and disability in the FHA. 42 U.S.C. § 2000e(j); id. § 3604(f)(3)(B). Unless specified, this Article does not discuss those provisions.Show MoreCourts routinely declare fair housing to operate essentially entirely in parallel with Title VII and create most FHA standards by importing Title VII jurisprudence. Part I of this Article describes the basic relationship between the FHA and Title VII: not only their parallel construction, but also how scholars have found the FHA to nevertheless fall far short of Title VII’s efficacy. This comparison allows Title VII to serve as an analytic baseline: where the FHA goes beyond the statute that courts have deemed to be its model and that scholars have identified as more successfully transformational, the FHA’s distinctive features are made visible.

And for all that courts claim to interpret the statutes near identically, in many archetypal types of fair housing cases, the FHA takes a markedly different, more structural approach than Title VII ever allowed. For example, banks that open branches only in predominantly white neighborhoods are frequently found liable for housing discrimination; their siting decisions unfairly create a market in which white households are more likely to apply for and receive a mortgage. But no employment discrimination suit is ordinarily available against a firm that opens its branches in far-flung, predominantly white suburbs rather than transit-rich downtown locations more accessible to non-white workers.

Likewise, a local government which uses restrictive zoning to exclude lower-cost apartments or group homes for people with disabilities may violate the FHA; the Supreme Court has deemed such cases the “heartland” of disparate impact liability under the Act.⁷ 7.Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 539 (2015).Show MoreIn these cases, fair housing requires not only equal access to a predefined set of housing opportunities, but that the proper mix of opportunities be available in the first place. But no suit is available to scrutinize a firm’s mix of job opportunities. Title VII does not ask, for example, whether a hospital has kept too much medical work reserved for physicians (sixty-five percent male) and thereby excluded nurse practitioners (eighty-five percent female).⁸ 8.U.S. Dep’t of Health & Hum. Servs., Bureau of Health Workforce, Sex, Race, and Ethnic Diversity of U.S. Health Occupations (2011–2015), at 10 tbl.1 (2017), https://web.archive.org/‌web/20241014113124/https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/diversity-us-health-occupations.pdf#expandhttps://bhw.hrsa.gov/data-research/revie‌w-health-workforce-research [https://perma.cc/KCW5-QVAU].Show More

Finally, the FHA protects homebuyers not only from discrimination at the point of sale, but also from discrimination which denies them the qualifications needed to access certain segments of the market. Specifically, the FHA protects buyers from discrimination in acquiring a mortgage and homeowners’ insurance. But no Title VII suit is available to help workers secure the additional qualifications they need for better jobs.

As Part II of this Article explains, the Fair Housing Act takes on practices well beyond the limits of Title VII. Employment discrimination law, at its heart, governs how to match people to job opportunities. Fair housing law, under the right set of facts, can expand the set of opportunities—including, sometimes, to accommodate needs created by preexisting inequalities.

This is not to say that the FHA has had a radical effect in practice. It has not. The FHA does not always allow for the restructuring of housing markets. It usually does not. And even when it does, the Act’s other, well-appreciated limitations undermine those efforts. Since its enactment, the FHA has consistently fallen short even of its more modest ambitions, all too often leaving housing discrimination and segregation intact. Even the categories of cases highlighted in this Article have had limited effect. Most zoning provisions, for example—even those that clearly disproportionately limit opportunities for people of color or people with disabilities—have never been readily challenged as fair housing violations.⁹ 9.See generally Jonathan Zasloff, The Price of Equality: Fair Housing, Land Use, and Disparate Impact, 48 Colum. Hum. Rts. L. Rev. 98 (2017) [hereinafter Zasloff, Price of Equality] (arguing that more zoning regulations ought to be rejected under a disparate impact theory). See also Noah M. Kazis, Fair Housing, Unfair Housing, 99 Wash. U. L. Rev. Online 1, 13–21 (2021) [hereinafter Kazis, Unfair Housing] (providing a framework for effectively scrutinizing land use regulation under the FHA’s Affirmatively Furthering Fair Housing (“AFFH”) provisions).Show MoreCourts have sometimes used causation and “directness” requirements to curtail the reach of the FHA in precisely those areas where a structural analysis might be most helpful.¹⁰ 10.Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (finding that the FHA did not cover a highway relocation decision because the Act “requires a closer causal link between housing and the disputed action”); Jones v. Off. of the Comptroller of the Currency, 983 F. Supp. 197, 202 (D.D.C. 1997) (declining to hold a bank regulator responsible for a lending regulation), aff’d, No. 97-5341, 1998 WL 315581 (D.C. Cir. May 12, 1998); Mich. Prot. & Advoc. Serv., Inc. v. Babin, 18 F.3d 337, 345 (6th Cir. 1994) (finding neighbors who fundraised to outbid a group home not liable because their actions did not directly make housing unavailable).Show MoreRemedial weaknesses limit the impact even of successful suits.¹¹ 11.One of the most prominent of the exclusionary zoning cases was decided by the U.S. Court of Appeals for the Second Circuit in 1988 and affirmed by the Supreme Court. Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 941 (2d Cir. 1988), aff’d, 488 U.S. 15, 18 (1988). But the housing development at issue spent decades continuing to fight for permits and, as of 2025, was finally accepting applications. Matinecock Court Residential Community Updates, Hous. Help Inc. (Mar. 25, 2025), https://sites.google.com/ho‌usinghelpinc.org/matinecockcourtdfc/home [https://perma.cc/V77N-7DXB].Show MoreJudges remain hesitant and perhaps institutionally ill-equipped to fully police whether housing markets discriminate.¹² 12.Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Calif. L. Rev. 1, 21–26 (2006); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting) (“Our role is not and should not be to sit as a zoning board of appeals.”).Show MoreThe limiting principles courts use are sometimes unclear, and this Article does not resolve these uncertainties.¹³ 13.See supra note 10 and accompanying text; infra notes 178–79, 315 and accompanying text.Show MoreNor do I mean to suggest that the FHA is radical in all respects. It asks radical questions—considering whether to restructure markets in their entirety and assessing whether almost any action by any actor discriminatorily reduces housing opportunity—but it does not often provide a radical answer or consequences.

Regardless, the Act has maintained an internal logic that is worth uncovering—and building upon. For all the Act’s weaknesses, it recognizes that restructuring markets is permissible and sometimes necessary to securing equality. Given the baseline of Title VII, which is often held to be the exemplar of antidiscrimination law, questioning the structure of housing markets at all is a radical move. The FHA does not accept that equality can be pursued only within the confines of the world as it currently is.

These structural ambitions reflect the demands of the statute itself. As Part III demonstrates, they derive from textual choices by the Act’s drafters, responding to the practical realities of housing markets and Congress’s dual purposes of ending discrimination and segregation.¹⁴ 14.This Article is consistent with recent efforts to use “progressive textualism,” especially in the civil rights context, to return to the ambitions of the civil rights statutes themselves. See, e.g., Katie Eyer, Textualism and Progressive Social Movements, 90 U. Chi. L. Rev. Online 1, 2 (2024); Deborah A. Widiss, Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 358–59 (2021); Muldrow v. City of St. Louis, 144 S. Ct. 967, 972 (2024) (rejecting lower courts’ restrictive Title VII precedents requiring “significant” harm because “Title VII’s text nowhere establishes that high bar”). However, in the FHA contexts described here, text, purpose, and most precedent point in the same direction. The goal here is not to restore the statute to an original meaning, but to recognize the statute’s operation.Show MoreBy its plain text, the Fair Housing Act covers more actors and different actions than Title VII.¹⁵ 15.The statute does not, however, demarcate just how far it reaches or precisely when market structures are impermissible. The text and purpose of the statute support the questioning of market structures as potentially discriminatory, but do not offer their own dispositive account of which structures qualify. See infra Part III.Show MoreTitle VII, for example, primarily covers discrimination by “employer[s].”¹⁶ 16.See, e.g., 42 U.S.C. § 2000e-2.Show MoreBut Congress extended fair housing liability beyond actions taken by certain actors or within particular relationships, like landlord-tenant or buyer-seller. The FHA intentionally ensures that whoever is capable of building discriminatory market structures can be made to stop. Other statutory language—focused on liability rather than coverage—indicates Title VII’s focus on discrimination at the personal or transactional level and the FHA’s attention to market conditions.

As the Supreme Court recognized early on, the “reach” of the Fair Housing Act was to create “truly integrated and balanced living patterns.”¹⁷ 17.Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting 114 Cong. Rec. 3422 (1968) (statement of Sen. Walter Mondale)).Show MoreFor all the Act’s shortcomings, Congress gave it the breadth and powerful ambition to do what must be done to achieve that still-unfulfilled promise.

This Article’s aims are primarily to expose and explain the shape of current fair housing law. But identifying the FHA’s structural approach also offers new clarity on contemporary issues in fair housing law, as described in Part IV. It explains why the FHA has recently emerged as a leading tool in tackling discrimination by online platforms. It helps delineate the proper scope of the FHA’s important but ill-defined mandate that the government “affirmatively further” fair housing, which is currently the subject of a highly contested rulemaking. It reveals how judicial discomfort with the FHA’s breadth has been channeled into attacks on disparate impact. And it supports the recognition of longer and more indirect causal chains in FHA litigation.

Finally, the Article concludes by re-situating the FHA within the broader landscape of civil rights statutes. For while the FHA is conventionally understood to parallel Title VII, its attention to market structures instead resembles features of the Voting Rights Act (“VRA”), the Americans with Disabilities Act (“ADA”), and Title IX’s protections for college athletes. To fully understand the FHA—what it is and where it might go—scholars should look to these other civil rights statutes. And to understand civil rights law as a field, scholars must better understand the FHA.

It is an important time to clarify our understanding of the Fair Housing Act. Fair housing has taken on new public significance in response to both the larger mobilization for civil rights spurred by the Black Lives Matter movement¹⁸ 18.Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem, Introduction, in Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods 3, 8 (Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem eds., 2021).Show Moreand new research underscoring the centrality of housing discrimination and segregation in entrenching inequality.¹⁹ 19.See, e.g., Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II: County-Level Estimates, 133 Q.J. Econ. 1163, 1208–10 (2018). See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017) (detailing how discriminatory public policy created segregated and unequal communities).Show MoreBut this engagement comes as the law of fair housing has become unstable. The Supreme Court, in affirming the availability of disparate impact liability under the FHA, described—or perhaps created—a set of judicially imposed “safeguards” on disparate impact meant to avoid any constitutional concerns;²⁰ 20.Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 544 (2015).Show Morethe meaning of those safeguards has split the lower courts.²¹ 21.See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901–05 (5th Cir. 2019).Show MoreMeanwhile, the Department of Housing and Urban Development (“HUD”)—the agency responsible for administering and interpreting the FHA—attempted to clarify various legal standards through rulemaking during the Obama Administration, only to reverse course under the first Trump Administration and again under the Biden Administration.²² 22.See Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8523–24 (proposed Feb. 9, 2023) (to be codified at 24 C.F.R. pts. 5, 91–93, 570, 574, 576, 903, 983); Discriminatory Conduct Under the Fair Housing Act, 24 C.F.R. § 100 (2025).Show MoreImportant aspects of fair housing law are newly up for grabs. With so much uncertain, it is valuable to spotlight what is settled—especially when what is settled is also what is radical.

The U.S. Court of Appeals for the District of Columbia Circuit put it well in an early opinion interpreting the FHA (one of the few to explicitly recognize this transformative ambition): the Act was “an attempt to alter the whole character of the housing market.”²³ 23.Mayers v. Ridley, 465 F.2d 630, 652 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring). Remarkably, this language comes from the split court’s narrower, moderate opinion, written by a conservative Nixon appointee. Judge Skelly Wright’s opinion for the court’s liberals went further still, calling for courts to excise all “vestiges” of discrimination from the “tainted” housing market. Id. at 643 (Wright, J., concurring).Show MoreThe court understood Congress to have seen housing discrimination not as a problem contained within individual acts of animus, nor even within the policies and practices of particular lenders or landlords. It is housing markets writ large that must be made nondiscriminatory. Fair housing law has been, from its inception, structural.

1.  Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247, 248–49 (2016) [hereinafter Zasloff, Secret History] (describing conventional wisdom that the FHA was intentionally weak); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1205–07 (2011) (detailing the FHA’s original enforcement scheme). ↑
2.  Wendell E. Pritchett, Where Shall We Live? Class and the Limitations of Fair Housing Law, 35 Urb. Law. 399, 401 (2003). ↑
3.  See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (describing the perpetuation and harmful effects of extreme segregation). ↑
4.  But see Richard H. Sander, Yana A. Kucheva & Jonathan M. Zasloff, Moving Toward Integration: The Past and Future of Fair Housing 145–52 (2018) (providing a revisionist take on the FHA’s strength). ↑
5.  Johnson, supra note 1, at 1193–94; David D. Troutt, Inclusion Imagined: Fair Housing as Metropolitan Equity, 65 Buff. L. Rev. 5, 8 (2017); Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 8–9 (2020). ↑
6.  Throughout, this Article compares the FHA and Title VII’s treatment of discrimination on the basis of race, sex, and other protected characteristics. Each statute also has separate provisions applying a different “reasonable accommodations” standard for certain protected characteristics: religion in Title VII and disability in the FHA. 42 U.S.C. § 2000e(j); id. § 3604(f)(3)(B). Unless specified, this Article does not discuss those provisions. ↑
7.  Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 539 (2015). ↑
8.  U.S. Dep’t of Health & Hum. Servs., Bureau of Health Workforce, Sex, Race, and Ethnic Diversity of U.S. Health Occupations (2011–2015), at 10 tbl.1 (2017), https://web.archive.org/‌web/20241014113124/https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/diversity-us-health-occupations.pdf#expandhttps://bhw.hrsa.gov/data-research/revie‌w-health-workforce-research [https://perma.cc/KCW5-QVAU]. ↑
9.  See generally Jonathan Zasloff, The Price of Equality: Fair Housing, Land Use, and Disparate Impact, 48 Colum. Hum. Rts. L. Rev. 98 (2017) [hereinafter Zasloff, Price of Equality] (arguing that more zoning regulations ought to be rejected under a disparate impact theory). See also Noah M. Kazis, Fair Housing, Unfair Housing, 99 Wash. U. L. Rev. Online 1, 13–21 (2021) [hereinafter Kazis, Unfair Housing] (providing a framework for effectively scrutinizing land use regulation under the FHA’s Affirmatively Furthering Fair Housing (“AFFH”) provisions). ↑
10.  Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (finding that the FHA did not cover a highway relocation decision because the Act “requires a closer causal link between housing and the disputed action”); Jones v. Off. of the Comptroller of the Currency, 983 F. Supp. 197, 202 (D.D.C. 1997) (declining to hold a bank regulator responsible for a lending regulation), aff’d, No. 97-5341, 1998 WL 315581 (D.C. Cir. May 12, 1998); Mich. Prot. & Advoc. Serv., Inc. v. Babin, 18 F.3d 337, 345 (6th Cir. 1994) (finding neighbors who fundraised to outbid a group home not liable because their actions did not directly make housing unavailable). ↑
11.  One of the most prominent of the exclusionary zoning cases was decided by the U.S. Court of Appeals for the Second Circuit in 1988 and affirmed by the Supreme Court. Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 941 (2d Cir. 1988), aff’d, 488 U.S. 15, 18 (1988). But the housing development at issue spent decades continuing to fight for permits and, as of 2025, was finally accepting applications. Matinecock Court Residential Community Updates, Hous. Help Inc. (Mar. 25, 2025), https://sites.google.com/ho‌usinghelpinc.org/matinecockcourtdfc/home [https://perma.cc/V77N-7DXB]. ↑
12.  Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Calif. L. Rev. 1, 21–26 (2006); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting) (“Our role is not and should not be to sit as a zoning board of appeals.”). ↑
13.  See supra note 10 and accompanying text; infra notes 178–79, 315 and accompanying text. ↑
14.  This Article is consistent with recent efforts to use “progressive textualism,” especially in the civil rights context, to return to the ambitions of the civil rights statutes themselves. See, e.g., Katie Eyer, Textualism and Progressive Social Movements, 90 U. Chi. L. Rev. Online 1, 2 (2024); Deborah A. Widiss, Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 358–59 (2021); Muldrow v. City of St. Louis, 144 S. Ct. 967, 972 (2024) (rejecting lower courts’ restrictive Title VII precedents requiring “significant” harm because “Title VII’s text nowhere establishes that high bar”). However, in the FHA contexts described here, text, purpose, and most precedent point in the same direction. The goal here is not to restore the statute to an original meaning, but to recognize the statute’s operation. ↑
15.  The statute does not, however, demarcate just how far it reaches or precisely when market structures are impermissible. The text and purpose of the statute support the questioning of market structures as potentially discriminatory, but do not offer their own dispositive account of which structures qualify. See infra Part III. ↑
16.  See, e.g., 42 U.S.C. § 2000e-2. ↑
17.  Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting 114 Cong. Rec. 3422 (1968) (statement of Sen. Walter Mondale)). ↑
18.  Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem, Introduction, in Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods 3, 8 (Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem eds., 2021). ↑
19.  See, e.g., Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II: County-Level Estimates, 133 Q.J. Econ. 1163, 1208–10 (2018). See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017) (detailing how discriminatory public policy created segregated and unequal communities). ↑
20.  Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 544 (2015). ↑
21.  See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901–05 (5th Cir. 2019). ↑
22.  See Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8523–24 (proposed Feb. 9, 2023) (to be codified at 24 C.F.R. pts. 5, 91–93, 570, 574, 576, 903, 983); Discriminatory Conduct Under the Fair Housing Act, 24 C.F.R. § 100 (2025). ↑

23.  Mayers v. Ridley, 465 F.2d 630, 652 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring). Remarkably, this language comes from the split court’s narrower, moderate opinion, written by a conservative Nixon appointee. Judge Skelly Wright’s opinion for the court’s liberals went further still, calling for courts to excise all “vestiges” of discrimination from the “tainted” housing market. Id. at 643 (Wright, J., concurring). ↑