In response to an Advance Notice of Proposed Rulemaking (see Memo, 5/14 and 6/25), NLIHC, eight Democratic senators, and other fair housing advocates submitted separate comment letters regarding HUD’s expressed doubts that the 2013 Disparate Impact rule is consistent with the U.S. Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities (see Memo, 6/29/15).
NLIHC, the senators, and other advocates expressed support for the Disparate Impact regulation and urged HUD to not amend the current rule because, despite HUD’s claim, there is nothing in the Inclusive Communities decision that warrants a reconsideration. Rather than weaken an essential fair housing tool, HUD should begin to vigorously enforce the Disparate Impact rule.
NLIHC reminded HUD that for decades it has interpreted the Fair Housing Act to prohibit housing practices that have a discriminatory effect, even if there was no obvious intent to discriminate. Eleven U.S. Courts of Appeals agreed. Because there were minor variations in how the courts and HUD applied the discriminatory impact concept, however, HUD issued the rule to establish uniform standards.
The product of the rule was the “burden-shifting” framework, which the Inclusive Communities Supreme Court decision implicitly adopted. NLIHC cited four court cases decided after Inclusive Communities that found that the Disparate Impact regulation is consistent with the Inclusive Communities ruling.
In addition, the senators’ letter addressed HUD’s question regarding whether there should be “safe harbors” for certain sectors. They wrote:
“There must be no exemption for insurance firms because there is a history of redlining and discriminatory practices in homeowners’ insurance products. Thanks to enforcement using the Fair Housing Act’s disparate impact standard, the insurance industry has modified many of its practices to write more policies in communities of color and to address disparities in pricing. These changes have resulted in more customers of and greater profits for insurance firms and higher quality products and services for homebuyers. Progress has been made in this area, but it is not self-executing.”
The senators’ letter was signed by Senators Catherine Cortez Masto (D-NV), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Kamala Harris (D-CA), Tammy Duckworth (D-IL), Maria Cantwell (D-WA), Mazie Hirono (D-HI), and Cory Booker (D-NJ).
NLIHC also signed on to a comment letter circulated by the National Fair Housing Alliance (NFHA).
NLIHC President and CEO Diane Yentel also wrote an op-ed about HUD’s continued attacks on the Fair Housing Act that was published in the August 23 issue of The Hill. The article, titled “Trump administration continues to undermine Fair Housing Act,” outlined ways in which Secretary Carson has engaged in efforts to dismantle decades of purposeful federal, state and local housing policies put in place to foster communities free from discrimination. “While Secretary Carson purports an interest in using a new AFFH rule to reverse local exclusionary zoning barriers, it’s hard to take him at his word,” wrote Diane. “His is the administration that let Westchester County (NY) off easy after its nine-year battle with the federal government pushing the county to remove such barriers. Rather than require the county to make substantive improvements to its local exclusionary zoning policies, Carson instead allowed the county to simply make cosmetic changes.”
NLIHC’s comment letter is at: https://bit.ly/2PvX9hd
The NFHA sign on letter is at: https://bit.ly/2MrmfQl
The senators’ letter is at: https://bit.ly/2o33p3A
More information about disparate impact is on page 7-1 of NLIHC’s 2018 Advocates’ Guide.
Read Diane Yentel’s op-ed at: https://bit.ly/2PviZS2