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ICP v Lincoln Properties and its “progeny.”

In the last days of the Trump administration HUD promulgated a new regulation concerning disparate impact claims under the Fair Housing Act whose intent was very clearly to make such claims difficult even to plead, let alone prove.¹ Its implementation remains stayed by a federal court, but in the Fifth Circuit that may not matter because earlier Fifth Circuit cases are even more restrictive. Prompted by the discussion in Treece v. Perrier Condo. Owners Assn., Inc., 2021 WL 533720 (E.D. La. Feb. 12, 2021) I decided to take a hard look at the Fifth Circuit’s decision in Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 895 (5th Cir. 2019), cert. denied, 140 S. Ct. 2506 (2020). That turned out to be a bigger project than I expected, because as interpreted Lincoln Properties is incredibly restrictive, but those interpretations are almost certainly wrong. Clarification seems inevitable even with the existing conservative Supreme Court. Here’s why. More