Liberal civil-rights groups say that any disproportionate effect of a policy on minorities represents a “disparate impact,” and that lawsuits based on this are essential in order to fight subtle forms of discrimination.

In practice, disparate impact creates a nightmare of paperwork and compliance costs for anyone in the housing business. It also can force a state or private builder to engage in race-conscious decision-making in order to avoid lawsuits. In other words, disparate-impact enforcement can lead to cases of discrimination under the guise of fighting discrimination.

Michael Skojec, a lawyer who filed a brief on behalf of Texas’s position, says what the country should be “trying to do is get people not to consider race, or think of people in racial terms”: “The disparate-impact concept encourages and requires people to think about race in every decision.” He points out that the city of Houston has over 43,000 families on its waiting lists for affordable housing, almost all of them black. But forcing the Texas Housing Authority to change its tax-credit allocations will mean that most of them will have to wait far longer to get a better place to live.