By Vanguard Staff
WASHINGTON — The National Fair Housing Alliance denounced a proposed rule released by the U.S. Department of Housing and Urban Development that would weaken fair housing discrimination protections by significantly scaling back the use of disparate impact, a long-standing enforcement tool under the Fair Housing Act.
In its proposal, HUD seeks to remove its Discriminatory Effects Rule, a regulation that has provided guidance on how to identify and address policies that have discriminatory outcomes even when discrimination is not explicit. The alliance said eliminating the rule would make it far more difficult for housing providers, financial services companies and consumers to understand and enforce their rights under federal law.
“The Fair Housing Act was passed, in part, as a tribute to Dr. Martin Luther King, Jr., who fought long and hard to remove all forms of discrimination as well as the vestiges of redlining, segregation, and other harmful race-based policies from our society,” said Lisa Rice, president and CEO of the National Fair Housing Alliance. “As the nation prepares to commemorate his birthday, HUD is taking this step to move America further away from his vision of a fair, inclusive society where everyone can thrive.”
Disparate impact allows courts and enforcement agencies to address discrimination that operates through policies or practices that appear neutral on their face but disproportionately harm protected groups. According to the alliance, the doctrine prevents the use of proxies for race, gender and other protected characteristics that can lock people out of housing opportunities and requires housing providers, financial institutions and municipalities to ensure fair access to safe, secure and affordable housing.
The alliance said HUD’s proposed action would make it more difficult for veterans, people with disabilities, low-income households, domestic violence survivors and residents of rural communities to challenge systemic housing discrimination during what it described as a national fair and affordable housing crisis.
“This proposal is yet another attempt by the Trump Administration to weaken our nation’s civil rights laws,” Rice said. “These protections are critical to addressing exclusionary zoning and increasing the supply of affordable homes. The proposal from HUD also follows an obtuse application of this tool (disparate impact) by the Department of Justice where Attorney General Pam Bondi characterizes programs created to assist first-generation program beneficiaries as discriminatory because the first-generation tag might implicitly serve as a proxy for race. This administration’s logic simply does not add up.”
For more than four decades, courts have upheld disparate impact as a valid legal theory under the Fair Housing Act, including in a 2015 U.S. Supreme Court decision, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. In that ruling, the Court wrote that “much progress remains to be made in our Nation’s continuing struggle against racial isolation” and warned against policies that could deepen segregation, citing concerns raised decades earlier by the Kerner Commission that the nation was moving toward “two societies, one black, one white — separate and unequal.”
The alliance said the Supreme Court has already made clear that disparate impact claims are cognizable under the Fair Housing Act and that HUD’s Discriminatory Effects Rule was adopted to provide clarity on how the standard should be applied. It described the proposed rollback as a dereliction of HUD’s responsibility to fully enforce the law.
The organization also cited a series of other actions by HUD and the Trump administration that it said have weakened civil rights enforcement, including changes to Title VI enforcement standards, staff reductions within HUD’s Office of Fair Housing and Equal Opportunity, proposed rollbacks of fair lending protections under the Equal Credit Opportunity Act, limits on the ability to file discrimination complaints and the termination of HUD’s 2021 Affirmatively Furthering Fair Housing rule.
“Preserving the disparate impact tool is vital for protecting the rights of women, people of color, families with children, survivors of domestic violence and sexual harassment, and seniors,” Rice said. “NFHA opposes HUD’s proposal to remove the well-established Discriminatory Effects Regulation and replace it with a watered-down rule that will impede efforts to enforce the law and secure equal housing opportunities. We must and will continue to fight for fair housing rights for all. Fair housing laws improve communities block by block and make our nation more prosperous for everyone. This proposed rule should never see the light of day.”
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