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The Many Meanings of 'Because Of': A Comment on Inclusive Communities Project

Abstract

This brief essay critically analyzes the role of causation in the Supreme Court’s recent Inclusive Communities Project decision. The Court held disparate impact claims cognizable under the Fair Housing Act, but two powerful dissents objected that the statute’s “because of race” language could reach only disparate treatment. The majority offered no competing account of this language, which recurs throughout antidiscrimination statutes. This, in microcosm, is antidiscrimination jurisprudence today. The Court’s most conservative wing has a clear, narrow conception sharply limited by discriminatory intent; the more liberal Justices chafe at those limits but offer no systematic alternative. This essay supplies a simple interpretation of “because of race,” emphasizing causation over motivation. This account not only defeats the dissents’ objections but also points the way toward a comprehensive antidiscrimination theory that displaces discriminatory intent, no matter how broadly construed.

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