NLIHC Submits Comments Opposing HUD’s Proposed Disparate Impact Rule, Dismantling of Fair Housing Law

By Kayla Blackwell, NLIHC Senior Housing Policy Analyst and Sarita Kelkar, NLIHC Policy Intern 

NLIHC submitted a comment letter and joined four additional comment letters in opposing the HUD Notice of Proposed Rulemaking (NPRM) on the “Fair Housing Act” Disparate Impact Standard. The disparate impact regulations historically established a standard for HUD and the courts to use in determining whether discriminatory effects result in disparate impact on certain marginalized communities, even if facially neutral. 

As stated in NLIHC’s comment, the proposed disparate impact rule signifies HUD’s attempt to eliminate disparate impact as a “civil rights tool from its regulations in service of a broader project to eliminate the use of disparate impact liability across the federal government.” The proposed rule would not only force courts to be solely responsible for assessing disparate impact liability, removing the standard from the federal government (e.g., HUD), but also impede individuals’ ability to challenge housing discrimination and access fair housing.   

Brief Background  

Disparate impact refers to when policies, even unintentionally, perpetuate housing discrimination against “protected classes” of the “Fair Housing Act of 1968,” an act that prohibits housing discrimination based on race, color, national origin, sex, disability, familial status, or religion. Instances of discriminatory policies that create a disparate impact include occupancy limit policies that adversely affect families with children or policies that harm those relying on vouchers (disproportionately people of color): seemingly neutral practices that cause systemic inequality.   

The 2013 disparate impact rule made standard the process for determining when policies with discriminatory effects violate the FHA—action HUD and the courts had been taking for decades prior—and in 2015, the U.S. Supreme Court upheld the use of disparate impact theory in housing discrimination cases. While the first Trump administration attempted to revise the 2013 rule by increasing the barriers for people in protected classes to challenge discriminatory effects, the current NPRM deviates by attempting to remove the 2013 regulations altogether (see Memo, 1/20).    

NLIHC Action  

Since the NPRM was published, NLIHC has engaged in several disparate-impact actions to oppose the proposed rule. NLIHC’s own comment letter describes:  

• The importance of disparate impact theory as a legal tool for promoting access to affordable housing and keeping families housed.   

• The inadequacy of HUD’s explanation for removing disparate impact regulations and its silence on the removal of “perpetuation of segregation” language.   

• The confusion the NPRM will cause if finalized.   

• HUD’s failure to justify its insufficient 30-day comment period.    

NLIHC also joined four other letters submitted as comments from the National Housing Conference (NHC), Housing Justice Network (HJN), National Fair Housing Alliance (NFHA), and Partnership for Just Housing (PJH).   

The 30-day comment period closed on February 13. Over 1,400 comments were submitted, which HUD must read and account for in a published final rule.   

Read NLIHC’s comment letter here.   

Learn more about the history of disparate impact in NLIHC’s 2025 Advocates’ Guide.