Full opinion text
MORAN, Senior District Judge Yale College (Yale) requires all unmarried freshmen and sophomores under the age of 21 to reside in college dormitories, all of which are co-educational. The plaintiffs were Yale freshmen and sophomores when they brought this suit. They represent that as devout Orthodox Jews they cannot reside in those dormitories because to do so would conflict with their religious convictions and duties. Plaintiffs contend that Yale is a state actor or instrumentality and, therefore, the First, Fourth, and Fourteenth Amendments invalidate the parietal rule pursuant to 42 U.S.C. dard: only if (1) the government created the corporate entity by special law, (2) the government created the entity to further governmental objectives, and (3) the government retains “permanent authority to appoint a majority of the directors of the corporation” will the corporation be deemed a government entity for the purpose of the state action requirement. Id. at 400, 115 S.Ct. 961. See Barrios-Velazquez v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 492 (1st Cir.1996); Hall v. American Nat’l Red Cross, 86 F.3d 919, 921-922 (9th Cir.1996); American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401 (9th Cir.1996); Abu-Jamal v. National Pub. Radio, 1997 WL 527349, *4 (D.D.C. Aug.21, 1997), aff'd, 159 F.3d 635 (D.C.Cir.1998) (table). Here, the first two factors are easily satisfied: the State of Connecticut created the corporate entity by special law, and higher education is a governmental objective (although not the exclusive province of government). Two of nineteen board members is, however, a long way from control. § 1983; that in any event they are entitled to discovery to explore the interrelationship between Yale and the governments of Connecticut and New Haven; that Yale’s mandatory on-campus housing requirement is both an attempt to monopolize a New Haven housing market in violation of § 2 of the Sherman Antitrust Act and a tying arrangement in violation of § 1 of that statute; and that Yale’s refusal to exempt religious observers from coeducational housing violates the Fair Housing Act, 41 U.S.C. § 3601 et seq. The district court (Alfred V. Covello, C.J.) granted defendants’ motion to dismiss for failure to state a claim upon which relief can be granted, Hack v. President and Felloius of Yale College, 16 F.Supp.2d 183 (D.Conn.1998), and plaintiffs appealed. We affirm, with this judge dissenting in part, as explained in section III.B. I The threshold inquiry for plaintiffs’ constitutional claims is whether Yale can be considered a state actor or instrumentality acting under color of state law. The district court concluded that it could not. We agree. What constitutes state action has been variously described by courts as “an extremely difficult question,” “murky waters,” “obdurate,” and a “protean concept,” see Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3rd Cir.1984) (citations omitted), as the Supreme Court has grappled with differing factual circumstances, most recently in American Mfrs. Mwt. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The Court acknowledged in Lebron v. National RR Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), that “[i]t is fair to say that ‘our cases deciding when private action might be deemed that of the state have not been a model of consistency.’” Id. at 378, 115 S.Ct. 961 (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (O’Connor, J., dissenting)). As in Lebrón, however, we need not “traverse that difficult terrain,” 513 U.S. at 378, 115 S.Ct. 961, because plaintiffs rely almost entirely upon Lebrón in contending that Yale is not, in reality, a private entity but is, rather, an agency or instrumentality of the State of Connecticut for the purpose of individual constitutional rights. Plaintiffs begin by describing the significant interrelationships between Yale and the state from colonial days well into the latter nineteenth century. To that end they note that Yale is chartered by special legislation and, indeed, that charter is confirmed in the Connecticut Constitution. They contend that Yale was created to further public, governmental objectives, objectives that are equally valid today. Yale, they point out, must submit its budget and financial report to the Connecticut legislature. Finally, they argue that the presence of the Governor and Lieutenant Governor, as ex officio members of the nineteen-member “Fellows of Yale College” governing board, provides further support for the conclusion that Yale is a governmental entity. In Lebrón, the Supreme Court determined that Amtrak was a governmental entity: We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. Id. at 400, 115 S.Ct. 961. In the wake of Lebrón, other courts have concluded that the Court set forth a three-prong stan- Plaintiffs contend that a three-prong test, with one prong requiring “majority” governmental control, is an overly simplistic reading of Lebrón. They argue that the two highest executive officers of the state are likely to be far more influential than other members, that they carry with them the aura of official action, and that their participation is at least as significant as the Presidential power to appoint a majority of Amtrak board members from specific lists of recommended private sector nominees. We disagree. We think Lebrón means what it says. Indeed, the Court there contrasted Com-sat with Amtrak, noting that the President appointed only three of fifteen Comsat directors, 513 U.S. at 391, 115 S.Ct. 961, and describing it as a private corporation not government-controlled, id. at 397, 115 S.Ct. 961. Moreover, the Court has indicated its reluctance to have the federal courts indulge in evaluations of the effectiveness of governmental persuasion, absent government control. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 545-546 n. 27, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). Plaintiffs do not suggest that Connecticut had any involvement in establishing Yale’s parietal rules. It is equally clear that the state could not control Yale’s policies and operations even if it chose to become involved. Yale, as a private university, did not act under color of law. Alternatively, plaintiffs sought discovery about the interrelationships between Yale and the governments of Connecticut and New Haven, but the district court dismissed the complaint before any discovery could be initiated. Plaintiffs claim that a ruling before they had an opportunity to initiate discovery was in error. Again, we disagree. The motion to dismiss tested the pleadings, and for the reasons we have stated we conclude that the allegations do not state a claim that Yale is a Lebrón state actor. We have assumed that the governor and lieutenant governor may have attended every board meeting and vigorously participated (although it may be that their role is largely symbolic, a vestigial reminder of a bygone era), but we think that irrelevant. Nor does plaintiffs’ contention that discovery might provide a basis for finding state action upon a different theory, such as that enunciated in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), provide a justification. In seeking reversal of the dismissal they do not argue that their present pleadings support such an alternative theory. Rather, their contention is more of the nature that through discovery something might turn up, and they are not at all specific about what that might be. The district court, however, was not required to wait for the exploration of such a speculative hope. We note, as well, that plaintiffs have pleaded a wealth of information about the College, and not surprisingly so. Yale is not some obscure organization largely unknown in the greater community. Government policies and interrelationships are not generally hidden from the public. II Plaintiffs further allege that Yale’s requirement that freshmen and sophomores reside in the dormitories is an attempt to monopolize the New Haven student housing market and that it is an illegal arrangement tying the provision of a Yale education to the purchase of unrelated housing services, all in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2. We begin with the observation that if a parietal rule requiring some students to reside in college or university housing runs afoul of the antitrust laws, it has largely escaped the notice of the many colleges and universities across the country that have had and continue to have those rules and the notice of the millions of students who have attended those institutions in the more than a century since the Sherman Act was enacted. In Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 64-65 (2d Cir.1997), we noted that only one reported case involved an antitrust challenge to university housing policies. And there, American Nat’l Bank & Trust Co. of Chicago v. Board of Regents for Regency Universities, 607 F.Supp. 845 (N.D.Ill.1984), parietal rules similar to those here were not even questioned. When we speak of monopolization or attempted monopolization, we necessarily are talking about monopoly power within a relevant market. Plaintiffs, in their monopolization claim, are somewhat unclear about what constitutes the relevant market. They refer to student housing in New Haven, to the housing market for Yale students, and to non-subsidized rental housing in New Haven. We need not, however, seek to determine the relevant market upon which they purportedly rely because it is clear that their focus is upon a contractually created class of consumers: unmarried freshmen and sophomores below the age of 21. Plaintiffs do not claim, nor could they, that Yale controls non-Yale rental housing in New Haven, or that changes in the pricing of Yale housing or in other New Haven housing will have the slightest effect upon what those students will do. Yale does not control the supply of housing or student housing generally, but it does control the demand for some of it by its parietal rules. Economic power derived from contractual arrangements affecting a distinct class of consumers cannot serve as a basis for a monopolization claim. Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 438 (3d Cir.1997); Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 345 (N.D.Ill.1997). If plaintiffs have any antitrust claim it necessarily is that Yale has coerced plaintiffs into accepting a tied product. That claim, however, fails as well. The law was well-summarized in De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.1996): “A tying arrangement is ‘an agreement by a party to sell one product but only on the condition that the buyer also purchase! ] a different (or tied) product.’ ” Yentsch v. Texaco, Inc., 630 F.2d 46, 56 (2d Cir.1980) (quoting Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). “[T]he essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12, 104 S.Ct. 1551, 1558, 80 L.Ed.2d 2 (1984); see also Allen-Myland, Inc. v. IBM Corp., 33 F.3d 194, 200 (3d Cir.) cert. denied, 513 U.S. 1066, 115 S.Ct. 684, 130 L.Ed.2d 615 (1994). As to the detailed requirements to state a tying claim— [W]e have required allegations and proof of five specific elements before finding a tie illegal: first, a tying and a tied product; second, evidence of actual coercion by the seller that forced the buyer to accept the tied product; third, sufficient economic power in the tying product market to coerce purchaser acceptance of the tied product; fourth, anticompetitive effects in the tied market; and fifth, the involvement of a “not insubstantial” amount of interstate commerce in the “tied” market. Gonzalez v. St. Margaret’s House Hous. Dev. Fund Corp., 880 F.2d 1514, 1516-17 (2d Cir.1989) (citing Yentsch, 630 F.2d at 56-57). De Jesus, 87 F.3d at 70. Plaintiffs contend that their dormitory housing is “tied” to their Yale education (the “tying” product) and that Yale has sufficient economic power in the educational market to coerce their payment for that housing. They allege that a Yale degree “has unique attributes that make it without substitute or equal,” including the access it provides to Yale’s alumni network and its “incomparable value to potential employers and graduate schools.” A Yale education, they contend, has advantages not shared by other institutions of higher learning and this is enough for a finding of sufficient market power in the tying product market — or, since they have so alleged, they are entitled to pursue the matter further through discovery. The district court agreed that the uniqueness of a product can trigger a tying arrangement claim, see United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 620-21, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977), and so do we. That uniqueness can provide sufficient market power to compel a buyer to purchase a product he would not purchase in a competitive market. See Jefferson Parish, 466 U.S. at 16-17, 104 S.Ct. 1551; Lee v. Life Ins. Co. of North America, 23 F.3d 14, 16 (1st Cir. 1994). Where uniqueness is alleged, questions of market definition and market power will inevitably blend together because the relevant tying product market includes, by definition, only fungible products. “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); see also Town Sound and Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 479 (3rd Cir. 1992) (“If a defendant offers a unique and nonreplicable product, ... other products may not be adequate substitutes for it, and hence are not part of the same market.”). Plaintiffs argue, in effect, that the relevant product market is confined to a Yale education. To survive a motion to dismiss, however, the alleged tying product market must be plausible, see Toum Sound, 959 F.2d at 479 n. 12, and we agree with the district court that the market alleged here is not. See also Little Caesar Enterprises, Inc. v. Smith, 34 F.Supp.2d 459, 477 n. 30 (E.D.Mich.1998) (“Courts have consistently refused to consider one brand to be a relevant market of its own when the brand competes with other potential substitutes.”) (citing cases). Plaintiffs insist that there is no substitute for a Yale education, that it is unique, and in a collegiate sense that is undoubtedly so. See Lee v. Life Ins. Co. of North America, 23 F.3d 14, 17 (1st Cir.1994) (considering “uniqueness” of the University of Rhode Island). The annual rankings of colleges and universities in U.S. News and World Report, however, illustrates the obvious: there are many institutions of higher learning providing superb educational opportunities. Those opportunities are not inherently local. Plaintiffs themselves allege that 92.5 percent of the 1997-1998 freshman class came from outside Connecticut. If some of them, including the plaintiffs, were dissatisfied with the Yale parietal rules, they could matriculate elsewhere. The antitrust implications of university housing rules do not depend upon a trier of fact deciding that some universities, or certain departments in some universities, are “unique” and others are not. Hamilton Chapter of Alpha Delta Phi Inc. v. Hamilton College, supra, is not to the contrary. The court there never reached the relevant market issue, and, if it had, the considerations would have been quite different. Plaintiffs in Hamilton were “locked in” by their investment in housing which they could no longer use because of an abrupt change in policy. That might have raised the concerns voiced in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), but those concerns are not present here. Yale’s housing policies were fully disclosed long before plaintiffs applied for admission. They had no “lock-in” costs. Ill Plaintiffs further contend that Yale’s refusal to exempt religious observers from co-educational housing violates Title VIII of the Civil Rights Act of 1968, known as the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA” or “Title VIII”). The Fair Housing Act provides that “it shall be unlawful [t]o refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of ... religion.” 42 U.S.C. § 3604(a). The FHA also prohibits discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... religion.” 42 U.S.C. § 3604(b). A. Standing under the Fair Housing Act The district court did not reach the merits of plaintiffs’ Fair Housing Act claims because it concluded that the plaintiffs lacked standing. We disagree. The Act provides that “[a]n aggrieved person may commence a civil action in an appropriate United States district court....” 42 U.S.C. § 3613(a)(1)(A). A party is an “aggrieved person,” according to the definition in 42 U.S.C. § 3602(i)(l), if he or she “claims to have been injured by a discriminatory housing practice.” The Act requires only that the party “allege ‘injury in fact’ within the meaning of Article III of the [United States] Constitution, that is, that he allege ‘distinct and palpable injuries that are fairly traceable to [defendants’] actions.’ ” LeBlanc-Stemberg v. Fletcher, 67 F.3d 412, 424 (2d Cir.1995) (internal quotation marks omitted) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 375-76, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). The Supreme Court has repeatedly directed the courts to give a “generous construction” to the Fair Housing Act. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). “Congress intended standing under § 812 to extend to the full limits of Art. Ill” and thus courts lack authority to create prudential barriers to standing under the Act. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 9, 109, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Havens Realty, 455 U.S. at 372, 102 S.Ct. 1114; see also Comer v. Cisneros, 37 F.3d 775, 788-89 (2d Cir.1994) (according plaintiffs “the broadest possible grounds for standing”); Harris v. Itzhaki 183 F.3d 1043, 1049-50 (9th Cir.1999) (same); Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir.1996) (same, but finding that a favorable decision could not redress the injury). As Havens Realty, Trafficante and Gladstone make clear, and as Le-Blanc-Stemberg explained, “[a]n injury need not be economic or tangible in order to confer standing.” LeBlanc-Stemberg, 67 F.3d at 425 (citing Havens Realty, 455 U.S. at 376, 102 S.Ct. 1114). The student plaintiffs claim a tangible, economic injury. Indeed, they do not seek to compel Yale to provide single-sex housing; they ask to be relieved of the burden of paying for rooms they contend are effectively “made unavailable” to them. We conclude that they have amply alleged injury in fact and, accordingly, have standing to pursue Fair Housing Act claims. . Plaintiffs also refer to actions by Yale, the state, and New Haven, to accommodate Yale's large and tax exempt presence in New Haven. They do not, however, and they could not, claim that Yale is an instrumentality of New Haven, and we fail to see how those accommodations materially strengthen their Lebrón analysis. . Section 812 of the Fair Housing Act of 1968, previously codified at 42 U.S.C. § 3612, has been repealed and replaced by 42 U.S.C. § 3613(a). See Pub.L. 100-430, § 8(2), Sept. 13, 1988, 102 Stat. 1625.
POOLER, Circuit Judge, with whom LEVAL, Circuit Judge, concurs: B. Failure to State a Claim Because we disagree with the district court’s conclusion that the students lack standing, we must consider Yale’s contention that the students failed to state an FHA claim. We begin with the observation that plaintiffs allege no discriminatory intent on Yale’s part, no facially discriminatory policy, and no facts sufficient to constitute disparate impact discrimination. “[T]he reach of the [FHA] was to replace the ghettos ‘by truly integrated and balanced living patterns.’ ” Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (quoting 114 Cong. Rec. 3422 (1968) (remarks of Sen. Mondale, drafter of the FHA)); see also Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 936 (2d Cir.) aff'd in part, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (same). We have also said with respect to the FHA that “Congress intended that broad application of the anti-discrimination provisions would ultimately result in residential integration.” Town of Huntington, 844 F.2d at 936. This inclusive purpose is reflected in the statutory language. Insofar as it is relevant to this case, the FHA declares that it is unlawful “(a) [t]o refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of ... religion_ [or] (b) [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... religion.... ” 42 U.S.C. § 3604(a), (b) (emphases added). However, the FHA does not require a landlord or seller to provide a reasonable accommodation with respect to an individual applicant’s religion. See 42 U.S.C. § 3604(a)-(e). In summary, the FHA forbids those practices that make housing unavailable to persons on a discriminatory basis as well as discriminatory terms and conditions with respect to housing that is provided. An FHA plaintiff may proceed on a theory of disparate intent or disparate impact. See LeBlanc-Stemberg v. Fletcher, 67 F.3d 412, 425 (2d Cir.1995). Therefore, in order to state an FHA claim, plaintiffs must allege either that Yale adopted an identified policy that denied them housing or granted them housing on discriminatory terms and conditions for reasons that were, in significant part, discriminatory or that the identified policy although adopted for neutral reasons has a discriminatory impact on the availability of housing for Orthodox Jews or the terms and conditions on which the housing is offered. In judging whether the students stated a claim under either a disparate treatment or a disparate impact theory, we must “look only to the allegations of the complaint[,] ... assume all well-pleaded factual allegations to be true, and ... view all reasonable inferences that can be drawn from such allegations ... in the light most favorable to the plaintiff[s].” Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999) (internal citation omitted). We must find these allegations to be sufficient “unless it appears beyond doubt that [the students] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This rule applies with special force to claims of civil rights violations. See Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991). Moreover, we may not affirm the dismissal of the students’ complaint because they have proceeded under the wrong theory “so long as [they have] alleged facts sufficient to support a meritorious legal claim.” Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 45-46 (2d Cir.1997). However, plaintiffs must plead the requisite facts. See, e.g. Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir.1994) (dismissing prisoner’s procedural due process claim because he failed to allege particular due process violations). Our first and most difficult task is identifying the practice that the students attack. According to the dissent, plaintiffs allege “that a facially neutral housing policy makes housing effectively unavailable to Orthodox Jews.” [Dissent at 92.] Starting with this premise, the dissent finds that plaintiffs have stated a disparate impact claim under the Fair Housing Act. Although plaintiffs certainly allude to the allegedly discriminatory impact of Yale’s lack of parietal rules, these allusions must be considered in light of the relief they requested. Plaintiffs do not ask us to force Yale to implement more conservative rules. Rather, they request only the following relief on their FHA claims: (1) “a declaratory judgment that Yale’s policy of refusing to grant religion-based exemptions to its on-campus housing requirement, as applied and implemented by the defendants, unconstitutionally burdens the free exercise of religion, discriminates against and on the basis of religion, and ... that it therefore violates 42 U.S.C. § 3604”; (2) an injunction prohibiting the defendants “from enforcing, in the future, Yale’s mandatory on-campus housing policy against students who cannot reside in such housing because of their religious convictions”; and (3) an order directing Yale to reimburse the plaintiffs for housing charges they paid under duress. These requests place the otherwise skeletal factual allegations of the amended complaint in perspective. Of the three paragraphs in the FHA claim itself, the first merely incorporates by reference certain preceding factual allegations, and the second describes the applicable provisions of the FHA. Only the third paragraph describes plaintiffs’ theory of liability. It states: By requiring the plaintiffs to pay for and live in rooms in co-educational residential colleges, despite the plaintiffs’ religious objections to the sexual immodesty prevalent in Yale’s dormitories, and by refusing to accommodate the plaintiffs’ religious obligations, the defendants have discriminated against the plaintiffs, because of their religion, in the terms and conditions of a rental of a dwelling and in the provision of housing, in violation of the Fair Housing Act. Am. Compl. ¶ 99. Among the incorporated factual allegations arguably relevant to the FHA claim is the students’ contention that Yale allows other freshmen and sophomores to reside off campus for reasons such as age or marital status but refuses to allow an exception to its policy for religious reasons. Each of the four student plaintiffs requested a waiver of the requirement that they live on campus. In addition, the students claim that Orthodox Judaism prohibits “touching members of the opposite sex other than one’s immediate relatives or spouse [and] living in a situation in which a person would have regular or repeated exposure to members of the opposite sex undressed or dressed immodestly.” Am. Compl. ¶ 57. Finally, they claim that their counsel and “[v]arious third parties” have asked Yale to make unspecified reasonable accommodations to their beliefs or to grant them waivers, but Yale has refused.- Am. Compl. ¶¶ 67-68. Plaintiffs do not ascribe any particular motivation to Yale’s original requirement that freshmen live on campus but claim that Yale expanded the requirement to sophomores for the 1995-96 academic year “because it determined that too many Yale students were moving off campus, thereby reducing Yale’s revenues from housing charges to students.” Am.Compl. ¶ 55. Although the factual allegations do not specify clearly the policies plaintiffs attack or the accommodations they requested, the relief demanded makes it clear that the policy plaintiffs claim violates the FHA is the defendants’ refusal to exempt them from housing that they view as immoral. Plaintiffs request, pursuant to the FHA, the right to be excluded from housing, not the right to have on-campus housing that does not unduly burden their beliefs. Significantly, plaintiffs do not claim that defendants adopted their policy because of animus toward Orthodox Jews or that they grant exemptions to other religious groups or to students lacking a religious affiliation in a manner different from the exemption process for Orthodox Jews. Because plaintiffs seek exclusion from housing and not inclusion, they do not state an FHA claim. The purpose of the FHA is to promote integration and root out segregation, not to facilitate exclusion. See Trafficante, 409 U.S. at 211, 93 S.Ct. 364; Town of Huntington, 844 F.2d at 936. Because the complaint alleges neither intent to discriminate, nor a facially discriminatory policy, nor facts necessary to constitute disparate impact discrimination, nor even that the plaintiffs were excluded from housing, we believe sections 3604(a) and (b) cannot be stretched to cover plaintiffs’ claim that the FHA gives them a right to be excluded from Yale housing. Thus, based on our reading of the complaint, we would affirm the district court’s dismissal of plaintiffs’ FHA claims. Nevertheless, we also examine the interpretations of the complaint advanced in the plaintiffs’ and amici’s briefs and in the dissent. First, relying principally on Le-Blanc-Sternberg, the students argue that Yale’s policy of requiring all unmarried freshman and sophomores under the age of twenty-one to reside on campus coupled with “the current absence of any traditional, reasonable parietal rules” violates the FHA because it effectively prevents them from access to Yale housing. Pis.’ Br. at 37. Our dissenting colleague believes that plaintiffs have an actionable disparate impact claim based on this theory. In Le-Blanc-Stemberg, we — among other things — reversed a district court order setting aside an FHA jury verdict in favor of a group of Hasidic Jews and against the village of Airmont. LeBlanc-Sternberg, 67 F.3d at 424. The village had adopted a zoning code that arguably prohibited the use of home synagogues, which were necessary for the religious practice of Orthodox Jews. Id. at 417-20. We concluded that “there was ample support for the jury’s implicit finding that Airmont’s zoning code would be interpreted to restrict the use of home synagogues, [and] that the motivation behind the enactment was discriminatory animus toward Orthodox and Hasidic Jews.” Id. at 431 (emphasis added). The students, in contrast, do not allege any facts from which a discriminatory intent could be inferred, do not argue that defendants had a discriminatory intent, and, in fact, describe Yale’s motive as economic. Because LeBlanc-Stemberg involved intentional discrimination, it does not support the plaintiffs’ position. Nor have the students adequately pleaded that Yale’s facially neutral policy had a discriminatory impact. We apply Title VII disparate impact analysis to FHA claims. See Town of Huntington, 844 F.2d at 934 (applying Title VII analysis to public defendant); Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 302 (2d Cir.1998) (applying Huntington to private defendant). A “prima facie case is established by showing that the challenged practice of the defendant ‘actually or predictably results in racial discrimination.’ ” Town of Huntington, 844 F.2d at 934 (quoting United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974)). In order to state a prima facie claim the students must allege a “causal connection between [a] facially neutral policy ... and the resultant proportion of minority” group members in the population at issue. Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998). The students do not allege that Yale’s policy has resulted in or predictably will result in under-representation of Orthodox Jews in Yale housing. Therefore, their claim fails. See Brown, 163 F.3d at 712; Town of Huntington, 844 F.2d at 934. We cannot read into their complaint the missing allegations crucial to a disparate impact claim because a Rule 12(b)(6) motion tests the adequacy of the complaint, see Dangler, 193 F.3d at 138, not the briefs. Moreover, plaintiffs, who are represented by able and experienced counsel, filed one amended complaint and did not move to further amend when confronted with defendants’ motion. Plaintiffs’ second theory of liability is that Yale impermissibly discriminated against them on the basis of religion because it has a “policy of granting ad hoc and other exemptions and accommodations for secular reasons, but not for religious reasons.” Pis.’ Br. at 38. Nowhere in their complaint do plaintiffs allege that Yale has a system of “ad hoc ” exemptions. Although they refer loosely to the granting of exemptions “for reasons other than religious conviction and belief,” Am. Compl. ¶ 4, the only other reasons identified are age (over 21) and marital status. These exemptions apply to Orthodox Jews just as they apply to other students. However, even assuming that plaintiffs alleged the widespread grant of “ad hoc ” exemptions, they would not have stated a claim under the FHA. As we previously discussed, one relevant section of the FHA contemplates a challenge to a denial or refusal of housing and the other relevant section contemplates a challenge to discriminatory terms or conditions offered with respect to housing that is provided or offered. Plaintiffs’ allegation that defendants refused to grant them exemptions does not come within either of these sections because they do not allege that Yale’s refusal was based on intent to discriminate, was a facially discriminatory policy, constituted disparate impact discrimination by resulting in an under-representation of Orthodox Jews in Yale housing, or even caused them to be denied housing. Therefore, we affirm the district court’s dismissal of the students’ FHA claim. Having affirmed the dismissal of all of plaintiffs’ federal claims, we also affirm the dismissal of plaintiffs’ state law claims for lack of supplemental jurisdiction. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. MORAN, Senior District Judge, dissenting in part. Before explaining why I must respectfully dissent from my colleagues’ conclusion that plaintiffs have failed to state a claim under the Fair Housing Act, it is worth putting the students’ claim in context. Yale has provided plaintiffs with rooms on the same basis as other students. In so doing, it differs from private landlords generally because it can and does require that the students rent the rooms. There are some exceptions to this policy. Married students, those over 21, and those who have completed their freshman and sophomore years are not required to live in the dormitories. According to the complaint, Yale claims that living in college dormitories is “integral” to a Yale education (at least for younger and unmarried freshmen and sophomores). Nonetheless, plaintiffs are not required to occupy the rooms they lease; they must simply pay for them. This fact, according to the students, reveals that the residency requirement stems, at least in part, from Yale’s need to generate revenue from its student housing. Am. Compl. ¶ 55. Plaintiffs seek reimbursement for their redundant housing costs and, going forward, an order exempting them from the mandatory on-eampus housing policy. This relief is necessary, they allege, because attempts to find alternative on-campus, single-sex housing accommodations were unsuccessful. Am. Compl. ¶ ¶ 67-68. I tend to agree that Yale’s parietal rules are not what Congress had in mind when it originally enacted the Fair Housing Act. But that is not a basis for ruling, as RICO well illustrates. See National Organization for Women v. Scheidler, 510 U.S. 249, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (“ ‘[T]he fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’ ”) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)) (other citations omitted). Although the relevant standards for a disparate impact claim under the Fair Housing Act are, at the moment, rather fluid, there is ample authority to conclude that the complaint states a claim under sections 3604(a) and (b) of the FHA. Plaintiffs allege that a facially neutral housing policy makes housing effectively unavailable to Orthodox Jews, while the terms of that policy impose an additional financial burden on the basis of plaintiffs’ religion. Plaintiffs further allege, in so many words, that Yale has unreasonably refused to adopt an alternative housing policy that would provide a comparably effective means of meeting the defendants’ educational objective without imposing significant additional costs. Although these allegations are obscured by the morass of historical data directed toward a finding of state action, the necessary components of a disparate impact claim are surely present in the complaint. Defendants seek to avoid the disparate impact theory of liability by contending, incorrectly, that discriminatory animus must be alleged to maintain a claim under § 3604(a). Def. Br. at 38. Distinguishing the result in LeBlanc-Stemberg v. Fletcher, 67 F.3d 412 (2d Cir.1995), the defendants, and now the majority, emphasize the “jury’s implicit finding” in that case of some discriminatory intent lurking behind the challenged zoning ordinance. This argument is merely a strawman, for our cases, present and precedent, and those of our sister circuits make it quite clear that discriminatory animus need not be shown by plaintiffs proceeding under a theory of discriminatory effect. In truth, the students rely on LeBlanc-Stemberg for the proposition that a wide variety of housing practices may create an injury cognizable under the FHA. Indeed, our opinion today confirms that the economic penalty imposed on devout Orthodox Jews subject to Yale’s housing policy is sufficient to confer standing under the statute. I see no justification for demanding a more specific form of injury (ie., the rejection of an application for housing) or a particular form of relief (i.e., “inclusion”) in order for plaintiffs to meet the minimum pleading threshold. It is enough that defendants have allegedly imposed conditions on the acquisition of housing such that ostensibly available housing is effectively unavailable to a protected group. Given the liberality of pleading requirements under the federal rules,1 would remand the case for a decision on the merits of plaintiffs’ claims under the Fair Housing Act. A. The Disparate Impact Frameioork In order to evaluate whether plaintiffs have advanced a colorable claim under the Fair Housing Act, it is helpful to briefly examine the sources for and status of the relevant substantive standards for such a claim. For better or worse, we have hitched the Fair Housing Act to that itinerant alpha statute, Title VII of the Civil Rights Act of 1964. See Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926 (2d Cir.) (adopting the burden-shifting approach from Title VII employment discrimination cases and concluding that effect alone is sufficient to establish the prima facie case), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (affirming judgment); Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1227 (2d Cir.1994) (confirming that Title VII framework provides the best model for disparate impact claims under the FHA, and collecting cases); Pfaff v. U.S. Dept. of Housing and Urban Development, 88 F.3d 739, 745 n. 1 (9th Cir. 1996); Morgan v. Secretary of Housing and Urban Development, 985 F.2d 1451, 1456 n. 4 (10th Cir.1993); and see Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470 (8th Cir.1996) (observing that Title VII standards have “undergone several transformations in recent years”). The disparate impact path begins, of course, with Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), in which the Supreme Court recognized that Title VII provides a remedy not only for “overt discrimination but also [for] practices that are fair in form, but discriminatory in operation.” Under Griggs, a facially neutral employment practice which imposes a racially disproportionate burden on job applicants may violate Title VII even absent an intent to discriminate. This is so, the Court surmised, because “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Id. at 432, 91 S.Ct. 849 (emphasis added). The enduring elements of disparate impact litigation have their source in the language of the Court’s opinion: What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.... The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.... Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. Griggs, 401 U.S. at 432, 91 S.Ct. 849 (emphasis added). Later, however, in a series of significant decisions culminating in Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), the Supreme Court redirected disparate impact analysis away from the principles voiced in Griggs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Dothard v. Raw- linson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). During this period, the Court recharacter-ized the relevance of a defendant’s intent, Wards Cove, 490 U.S. at 660, 109 S.Ct. 2115; shifted the burden of persuasion entirely to the plaintiff, id. at 659-600, 109 S.Ct. 2115; and relaxed the employer’s obligation to prove the challenged practice was a “business necessity,” id. at 659, 109 S.Ct. 2115. After two years of intense dialogue about antidiscrimination policy approaches, much lobbying and political posturing, a presidential veto in 1990, innumerable amendments and revisions, and high level negotiations between congressional leaders and the Bush White House, Congress passed the Civil Rights Act of 1991 (“Civil Rights Act”), Pub.L. 102-166, 105 Stat. 1071, codifying certain developments and reversing others in an effort to shore up Title VII’s protections for victims of discrimination. Key provisions of the Civil Rights Act and the only official legislative history pointedly reject several of the Wards Cove modifications. Various amendments confirmed that disparate impact claims are distinct from those alleging intentional discrimination; reallocated the burdens of proof; and restored the substantive elements of a disparate impact claim to their pre-Wards Cove formulations. Under the amended statute, once a plaintiff has made the prima facie showing of disparate impact, the burden shifts to the defendant to demonstrate that the challenged practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(l)(A)(i). As to the substantive standards, the Purposes section provides that the Act was intended to codify the concepts of “business necessity” and “job related” enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). Pub.L. 102-166, § 3(2) (1991). The problem is that scholars and courts disagree as to what standards Congress intended to codify. Compare Michael Carvin, Disparate Impact Claims Under the New Title VII, 68 Notre Dame L.Rev. 1153 (1993) (arguing that Wards Cove is still good law after The Civil Rights Act); with Note, The Civil Rights Act of 1991: The Business Necessity Standard, 106 Harv. L.Rev. 896 (1993) (asserting that Wards Cove does not survive the Act); Susan Grover, The Business Necessity Defense in Disparate Impact Discrimination Cases, 30 Ga. L.Rev. 387 (1996) (arguing for a strict business necessity standard under the Act). Essentially, the competing interpretations turn on whether one views Wards Cove as consistent with and the inevitable result of earlier Supreme Court opinions, or whether the decision represented a significant departure from Griggs and its progeny. The language of the statute successfully succumbs to either interpretation. The Act’s ambiguous language, however, while apparently necessary to sustain a fragile congressional compromise, has allowed a number of contradictory standards to emerge. Compare Banks v. City of Albany, 953 F.Supp. 28 (N.D.N.Y.1997), with U.S. v. State of N.C., 914 F.Supp. 1257 (E.D.N.C.1996). Further muddying current authority is the fact that a number of recent disparate impact cases have addressed claims to which the Act did not retroactively apply, and it has not always been obvious whether courts are deciding claims based on pre-Act case law or new statutory standards. See, e.g., E.E.O.C. v. Joint Apprenticeship Committee of the Joint Industry Board of the Electrical Industry, 186 F.3d 110, 120 (2d Cir.1999) (allocating burdens of proof according to pre-Civil Rights Act case law); E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 n. 5 (1st Cir.1995) (deciding disparate impact claim based on pre-Act standards). Finally, although there is now consensus that Title VII standards govern claims under Title VIII, it has not always been easy to translate principles designed to regulate employment relations into the realm of public and private housing. For instance, “job performance” may be more closely related to employment qualifications than “tenant performance” is to rental criteria. See Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148-49 (3rd Cir.1977) (observing that the error cost is higher in the employment realm); Huntington, 844 F.2d at 936 (noting the absence in Title VIII cases of a single objective akin to job performance). There are analogous, but not identical concerns at issue; just as there are analogous, but not identical provisions in the antidiscrimination statutes. The toughest challenge is “to translate a body of precedent that simultaneously is undergoing rapid evolution.” Mahoney, supra n. 1, at 419. Because the nature of cases under the Fair Housing Act varies dramatically — from landlord/tenant disputes to Section 8 housing participation, from lending practices to urban zoning conflicts — this translation is best accomplished piece by piece, but with an eye toward the development of a coherent methodology. This case presents a new set of facts over which the evolving Title VIII framework should be laid. It may be that plaintiffs have no remedy, but their claim should be allowed to proceed through discovery toward a resolution on the merits. B. The History of Disparate Impact Claims under the FHA The contours of disparate impact analysis under the FHA have been shaped in large part by the Title VII developments addressed above. The Eighth Circuit in 1974 was the first to recognize the validity of a disparate impact claim under the Fair Housing Act. See U.S. v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974). Although the court crafted its test based on equal protection cases — authority invalidated shortly thereafter by Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) — the existence of a disparate impact claim under Title VIII was implicitly confirmed when the Supreme Court announced its decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. (Arlington Heights), 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). See Rizzo, 564 F.2d at 146; Mahoney, supra n. 3 at 431-132 (discussing implications of unique procedural posture in Arlington Heights). In Arlington Heights, a non-profit housing developer and several of its potential low— and moderate-income tenants brought suit alleging that the city’s failure to re-zone a 15-acre parcel from single-family to multiple-family classification constituted illegal housing discrimination under the Fourteenth Amendment and the Fair Housing Act. After dismissing plaintiffs’ equal protection claims based on the lower courts’ conclusion that the zoning board had not acted with a discriminatory purpose, Arlington Heights, 429 U.S. at 270-271, 97 S.Ct. 555, the Court remanded the case to the Seventh Circuit for consideration of plaintiffs’ disparate impact claims under Title VIII, id. at 271, 97 S.Ct. 555. On remand, the Seventh Circuit identified four factors to be evaluated in assessing whether conduct which produces a discriminatory impact will violate § 3604(a) of the FHA: (1) the strength of plaintiffs showing of discriminatory effect, (2) whether there is some evidence of discriminatory intent even if insufficient to satisfy the constitutional standards of Washington v. Davis, (3) the defendant’s interest in taking the challenged action, and (4) whether the plaintiff seeks to compel the defendant to affirmatively provide housing for members of a protected class or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Metropolitan Housing Development Corp. v. Arlington Heights (Arlington Heights II), 558 F.2d 1283, 1290 (7th Cir.1977). The Third Circuit took a different route. Relying on the Supreme Court’s decision in Arlington Heights, the court held that proof of discriminatory effect alone would satisfy the prima facie burden for disparate impact claims under the FHA. Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977). The Rizzo court then adapted the Griggs elements to the housing context. The court concluded that defendant’s rebuttal case is established if the practice is shown to “serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and ... that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Id. at 149. If the defendant introduces evidence that no such alternative course of action could be adopted, the Third Circuit specified that the burden would once again shift to the plaintiff to demonstrate that other such practices are available. Building upon Arlington Heights IIs “four-factor” approach or Rizzo’s “effect-only” standard and borrowing from the growing body of Title VII case law, other circuit courts began to formulate distinct tests for disparate impact claims under the FHA. See Ahrend, supra n. 1, (discussing the unresolved conflict among the circuit courts). Most circuits rejected the Arlington Heights II formulation to the extent that it examined the defendant’s intent as a component of the prima facie case. If effect alone was sufficient under Griggs, it was also sufficient for claims under the FHA. See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986 (4th Cir.1984) (holding that effect alone is sufficient to establish a prima facie case under the FHA); Arthur v. City of Toledo, Ohio, 782 F.2d 565, 576 (6th Cir.1986) (rejecting Arlington Heights II’s inclusion of intent as a factor, but adopting the other three); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1217 (2d Cir.1987) (“[T]he consensus is that a plaintiff need prove only discriminatory effect, and need not show that the decision complained of was made with discriminatory intent.”). In Huntington Branch, N.A.AC.P. v. Town of Huntington, 844 F.2d 926, 928 (2d Cir.1988), we considered a challenge to a suburban zoning ordinance which restricted the development of multi-family housing projects to a largely minority “urban renewal area.” The Huntington court’s decision set forth the test that has continued to govern disparate impact FHA claims in this circuit. Relying on Rizzo and Title VII case law we held that the prima facie case is established by showing that the challenged practice “actually or predictably results in racial discrimination; in other words that it has a discriminatory effect.” Id. at 934. Following Griggs, we emphasized that the plaintiff need not show that the housing decision was made with discriminatory intent. To require otherwise, we concluded, “would strip the statute of all impact on de facto segregation.” Id. at 934-35. Once a plaintiff established the prima facie case, Huntington required the defendant to “prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.” Id. at 936. Huntington rejected the inclusion of Arlington Heights II’s four factors as components of the prima facie case. “Employing the test in Arlington Heights II as a prima facie hurdle would cripple Title VIII.” Id. at 934. Instead, the court determined that the three factors adopted in City of Toledo (as well as any evidence of intent) are relevant for “the ultimate determination on the merits.” Id. at 936. According to Huntington, in order to adjudge “the ultimate balance,” the district court must assess whatever justifications the town advances and weigh them carefully against the degree of adverse effect shown by the plaintiff. Id. Even “substantial” interests in the housing policy “cannot, consistently with Title VIII, automatically outweigh significant disparate effects.” Id. at 937. Although Huntington’s, adherence to the Title VII burden shifting approach remains vital, see Salute v. Stratford Greens Garden Apartments, 136 F.3d at 312 (Cal-abresi, J. dissenting), the court’s final “balancing of interests” should be revisited in light of the statutory codification of disparate impact analysis in the Civil Rights Act of 1991. See Langlois v. Abington Housing Authority, 207 F.3d 43, 51 (1st Cir. 2000). C. Relevant Burdens of Proof for Disparate Impact Claims under the Fair Housing Act 1. The Prima Facie Case. A prima facie case of disparate impact housing discrimination is established by showing that a particular facially-neutral practice actually or predictably imposes a disproportionate burden upon members of the protected class. See Huntington, 844 F.2d at 934; Langlois v. Abington Housing Authority, 207 F.3d 43, 49-50 (1st Cir.2000); Pfaff v. U.S. Dept. of Housing and Urban Development, 88 F.3d 739 (9th Cir.1996); Orange Lake Associates, Inc., v. Kirkpatrick, 21 F.3d 1214, 1228 (2d Cir. 1994). To sustain a disparate impact claim under § 3604(b), plaintiffs must show that the challenged practice had an adverse impact on members of the protected class with respect to the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith. Under § 3604(a), plaintiffs must show that the challenged practice disproportionately excluded members of a protected group from a dwelling or from services or facilities connected therewith. Discriminatory intent need not be shown. Huntington, 844 F.2d at 935; Langlois, 207 F.3d at 49-50; United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1217 (2d Cir.1987). Nor should plaintiffs be required to address the other Arlington Heights II factors which some circuits have included in the prima facie case. See Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban Development, 56 F.3d 1243 (10th Cir.1995); Arthur v. Toledo, 782 F.2d 565, 575 (6th Cir.1986); Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir. 1982); Snyder v. Barry Realty Inc., 953 F.Supp. 217, 220 (N.D.Ill.1996). Indeed, in the housing context, it may often be the case that parties stipulate that a prima facie case (satisfying the elements of particularity, impact, and causation) has been established. See Pfajf, 88 F.3d at 746. The housing practices at issue are not likely to be part of a complex scheme of tests and qualifications and the adverse impact may be immediately apparent. 2. The Business Justification As the First Circuit pointed out in Langlois v. Abington Housing Authority, 207 F.3d 43, 49-50 (1st Cir.2000), not every policy causing a disparate effect is unlawful. “[A] vast array of measures, from war-making and the federal budget to local decisions on traffic and zoning, may have a disparate impact. Thus, practically all of the case law, both in employment and housing, treats impact as doing no more than creating a prima facie case, forcing the defendant to proffer a valid justification .... Indeed, while Congress’s amendment of the law after Wards Cove Packing Co. v. Atonio ... stiffened the employer’s burden of justification, it left intact the principle that disparate impact merely creates a prima facie case.” Langlois, 207 F.3d at 49-50. Thus, once a prima facie case of adverse impact is established, the inquiry turns to whether the defendant can nonetheless avoid liability by defending the practice. Huntington, 844 F.2d at 936. In the employment context, once a Title VII plaintiff has made out a prima facie case of disparate impact, the Civil Rights Act of 1991 shifts the burden of proof to the defendant, who must show that the challenged practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(l)(A)(i); see Lanning v. Southeastern Pennsylvania Transp. Auth. (SEPTA), 181 F.3d 478, 485 (3rd Cir.1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 840 (2000). As discussed above, the concepts of “business necessity” and “job related” are undefined in the statute, but “are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).” CM Rights Act, § 3(2) (1991); Interpretive Memorandum, 137 Cong. Rec. 28,680 (1991). As Judge Torres observed in Donnelly v. Rhode Island Board of Governors for Higher Education, 929 F.Supp. 583 (D.R.I.1996), aff'd. 110 F.3d 2 (1st Cir.1997), “consistent with” and “necessity” connote discordant ideas. Two things are consistent with one another if they are in harmony as opposed to being in conflict. On the other hand, something is a necessity if it is required or compelled. Since § 2000e-2(k)(l)(A)(i) uses these terms conjunc-tively, it is not clear whether Congress intended the standard to be that adherence to the challenged practice is required to conduct the employer’s business; that the practice is closely related to a legitimate business purpose; or something in between. Id. at 593 (citations omitted). Cobbling together the relevant statutory provisions, it appears that the phrase “consistent with business necessity” is shorthand for “consistent with the pre-Wai-sonlWards Cove conception of ‘business necessity.’ ” The Watson plurality shifted the focus away from the employer’s “need” for a particular practice because it is significantly correlated with job performance and toward the legitimacy of the employer’s business goals and whether the practice indeed contributed to those ends. In rejecting