By Kayla Blackwell, NLIHC Senior Housing Policy Analyst and Sarita Kelkar, NLIHC Policy Intern
On February 13 at 11:59 pm ET, HUD will close the comment period on the proposal to end the Fair Housing Act’s Disparate Impact Standard. NLIHC encourages the public to submit comments opposing the elimination of HUD’s disparate impact rule and urge HUD to fully enforce the “Fair Housing Act.” HUD’s Notice of Proposed Rulemaking (NPRM), published January 14, continues the current administration’s efforts to eliminate the use of disparate impact theory across the federal government.
The proposed rule aims to remove FHA’s discriminatory effects regulations and eliminate disparate impact (see Memo, 1/20). NLIHC has an updated comment template. See below for a link to a template comment letter and additional resources, with comments due February 13, 2026.
Brief Background
The disparate impact standard, established in the “Fair Housing Act” of 1968, prohibits housing discrimination based on race, color, national origin, sex, disability, familial status, or religion—creating “protected classes” in the case of both intentional discrimination and policies that have a “discriminatory effect.” While intentional discrimination is often easier to uncover, disparate impact helps identify practices that, while seemingly neutral at face value, cause systemic inequality. Examples of such a policy would be nuisance ordinances that endanger women experiencing domestic violence or restrictive zoning laws and building codes that disproportionately impact people of color.
While HUD and the courts have upheld the disparate impact standard for decades, HUD issued regulations in 2013 that established a uniform standard for evaluating when policies and practices with discriminatory effects violate the FHA. Moreover, in 2015, the U.S. Supreme Court affirmed that disparate impact claims can be brought under the FHA.
Even with these precedents, from 2019-2020, the first Trump administration proposed and issued a new disparate impact rule, creating a higher burden-of-proof of discriminatory effects on protected classes. While the rule was rescinded in 2023 under the Biden administration and the 2013 regulations restored, January’s NPRM seeks to remove these regulations and leave determining disparate impact liability under the FHA to the courts.
Take Action
- Submit your own comment! NLIHC urges housing and civil rights advocates to submit comments through 11:59 pm ET on February 13, 2026, at regulations.gov. HUD must read and account for comment content in a published final rule. The most impactful comments are those that are customized and unique. This is the opportunity to make your voice heard and share how the disparate impact rule protects your community from housing discrimination!
The National Fair Housing Alliance (NFHA) created a template letter for advocates to use in drafting their comments and can be submitted using NFHA’s portal. The template offers examples of how policies with a disparate impact may show up in your community.
NLIHC has modified the template, including supplementing the discussion on the role of disparate impact in providing access to affordable housing and suggesting ways to incorporate NLIHC’s research. Advocates are encouraged to use the template as a starting point for commenters to create a comment that best reflects their perspective. Find the template letter here.
- Sign a petition opposing the rule! The Alliance for Housing Justice (AHJ) also created a petition open to individuals and organizations urging HUD to withdraw the disparate impact rule, closing February 12. The petition reiterates that the “Fair Housing Act” is still the law of the land, and HUD is still legally required to enforce fair housing law. Join the petition to urge HUD to “withdraw this rule, adequately staff the Department, and get serious about its legally mandated responsibility.”
Share these resources with your networks! The Fair Housing Act and associated civil rights legislation was designed to protect all communities, but without adequate enforcement and funding, fewer protected classes benefit from the legislation. Share your comment with your housing organization, tenant union, or local community, and urge them to comment as well!
Download NLIHC’s template letter here.
Find step-by-step instructions on how to submit comments on Regulations.gov here.
Submit comments by February 13 at 11:59 pm ET here or using NFHA’s portal.
Read and join the AHJ petition by February 12 here.
Learn more about the history of disparate impact in NLIHC’s 2025 Advocates’ Guide.