NLIHC submitted comments expressing strong opposition to HUD’s proposed changes to the 2013 Disparate Impact rule. NLIHC urges HUD to withdraw its proposed rule because it is designed to make it virtually impossible for people experiencing various forms of discrimination to challenge the policies and practices of housing providers, governments, and businesses. HUD’s drastic proposal would discard the well-crafted and time-tested three-part burden-shifting standard, replacing it with a nine-component set of tests that place all the burden on people in the Fair Housing Act’s protected classes who claim housing discrimination.
NLIHC urges advocates to send their own comment letters opposing HUD’s proposed harmful changes to the 2013 Disparate Impact rule. Comments are due Friday, October 18 by 11:59 p.m. ET. NLIHC has a sample comment letter that advocates can adapt.
Disparate impact allows people to show that a housing policy or program has a discriminatory impact on them because of their race, sex, national origin, disability, or other protected characteristic – even if the policy or program appears on its face to apply to everyone equally.
HUD’s proposed rule would tip the scale in favor of housing providers, governments, and businesses that are accused of discrimination, shifting all of the burden of proof to the victims of discrimination.
NLIHC’s comment letter discusses specific problems with the text of the proposed rule:
- It removes text addressing perpetuation of segregation theory – one more attack on the Fair Housing Act and its intent to foster integration. The deletion of this key language, along with HUD’s attempt to suspend the Small Area Fair Market Rent rule and the agency’s actual suspension of the Affirmatively Furthering Fair Housing rule, signals HUD’s abdication of its responsibility to help eradicate housing segregation – much of which is the result of federal policies in previous decades.
- The text of the proposed rule erects virtually insurmountable barriers to prevent those experiencing discrimination from effectively challenging discriminatory policies or practices. NLIHC cites court decisions refuting HUD assertions in the preamble to the proposed rule that explain HUD’s proposed text. NLIHC also highlights how the proposed text compares very unfavorably with the current rule’s “legally sufficient justification” text by removing the purported offender’s (defendant’s) burden to provide a legally sufficient justification, instead placing the heavy burden on those claiming discrimination.
- The proposed rule places overwhelming burdens on those claiming discrimination to prove the defendant’s policies or practices have a discriminatory effect. The current rule places the burden of proof on the defendant to prove “the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.” HUD instead proposes to place the burden on those experiencing the harmful impact of a defendant’s policy or practice. Among a number of problems with the text, the proposed rule requires those claiming discrimination to demonstrate that working toward less discrimination will not entail significantly greater cost, begging the question – what is the price of fair housing and what are the short-term and long-term costs of discriminatory effects? In other words, the proposed rule suggests that preventing or eliminating discrimination against people protected by the Fair Housing Act should be cost-free.
NLIHC’s comment letter also provides examples of disparate-impact court decisions demonstrating the importance of disparate impact as a tool to protect people in the Fair Housing Act’s protected classes. Examples include:
- Nuisance ordinances that endanger women experiencing domestic violence
- Occupancy limit policies that adversely affect families with children
- Restrictive zoning laws and building codes that harm people with disabilities
- Restrictive zoning laws and building codes that disproportionately impact people of color
- Policies and practices that harm those relying on vouchers who are disproportionately people of color
- Redevelopment policies and practices that result in greatly increased rents that disproportionately harm people of color
- Disaster-recovery policies and programs that disproportionately harm or underserve people of color
Sample Comment Letters to Help You Write Your Comments:
- NLIHC’s sample comment letter is at: https://tinyurl.com/y54dqyqq
- A sample comment letter from the Fight for Housing Justice campaign is at: https://bit.ly/3288BFC
- A sample comment letter from the Defend Civil Rights campaign is at: https://bit.ly/33hjt4n
Please do your best to tailor your comment letter, explaining how HUD’s proposed changes could affect your organization or the people you work with. HUD will ignore comments that too closely follow a template, so submissions should be as customized as possible.
Not sure how to submit a comment letter via regulations.gov? Here are step-by-step instructions: https://bit.ly/2lLGiNa
NLIHC’s formal comment letter is at: https://bit.ly/2p8Fof5
Background Information:
NLIHC has a summary of key features of the proposed rule. NLIHC also has a side-by-side comparison of a key section (§100.500) of the current rule and proposed changes to it.
Read “Point of View” by NLIHC President and CEO Diane Yentel, “HUD’s Latest Attack on Fair Housing”
Read Diane’s op-ed from 2018, “The Trump Administration Continues to Undermine the Fair Housing Act”
More about disparate impact is on page 7-8 of NLIHC’s 2019 Advocates’ Guide.
The Fight for Housing Justice campaign website is at: https://www.fightforhousingjustice.org
The Defend Civil Rights campaign website is at: http://www.defendcivilrights.org