Businesses, Policymakers, Advocates, Experts speak out
Supporters from fair housing, education, health, technology, finance, government & law challenge HUD proposal to gut disparate impact tool under the Fair Housing Act as comment period ends
Over 45,000 people and organizations submitted comments in response to a Department of Housing & Urban Development (HUD) proposed rule that would gut an essential civil rights tool. The Trump administration proposed the rule in August and has since received widespread opposition from a wide array of civil rights advocates, legal experts and business groups across the country.
The proposed rule would severely weaken a critical tool for addressing housing discrimination under the Fair Housing Act, called “disparate impact.” This is one of the Trump administration’s most extreme moves to dismantle anti-discrimination laws.
The Fair Housing Act bars not only intentional discrimination but also the use of policies that appear neutral on their face but unnecessarily harm vulnerable populations such as communities of color. The proposed rule would allow financial institutions, insurance companies, and housing providers to engage in covert discriminatory practices by dramatically weakening disparate impact liability.
To learn more about the campaign to Defend Civil Rights and those who would be harmed by this proposed rule , visit www.defendcivilrights.org. Together, we can keep housing fair.Rep. John Lewis (D-GA), a civil rights hero, wrote:
Thirteen former Department of Justice officials and twenty-two State Attorneys General submitted comments in support of disparate impact, as did the United States Commission on Civil Rights and FTC Commissioner Rohit Chopra. Scores of national advocacy groups, think tanks, public and private entities, and Members of Congress submitted comments in opposition to the Trump administration’s proposal. Read key quotes from these and other submitted comments at the end of this post.
Policymakers who oppose the rule include Sen. Tammy Duckworth (D-IL) who submitted a comment, Sen. Elizabeth Warren (D-MA), who published an op-ed in support of disparate impact in the Boston Globe, and Sens. Chris Van Hollen (D-MA) and Doug Jones (D-AL), who criticized HUD’s intentions for the rule during Senate testimony last month. Eleven representatives from Illinois, including Reps. Jan Schakowsky, Cheri Bustos and Mike Quigley, submitted a comment on behalf of their constituents opposing HUD’s proposed rule.
Long Island Housing Services opposition
“HUD Secretary Carson states that his intent in this weakening of the Disparate Impact Rule would be to make more housing available. The effect of this proposed rule would be just the opposite,” said Ian Wilder, Esq., Executive Director of Long Island Housing Services, Inc. “The proposed weakening of the Disparate Impact Rule would actually lessen the availability of housing across the marketplace.”
“The current Disparate Impact Rule corrects the market failure to provide the same housing opportunities to all buyers regardless of their demographics, Wilder said. “A hollowing out of the Disparate Impact Rule would shield those who construct discriminatory barriers to achieving the American Dream of living where you want. These discriminatory barriers lessen access to housing; the opposite effect of what Secretary Carson hoped to achieve.
Housing discrimination harms many diverse communities around the country, including families with children, women, LGBTQ people, people with disabilities, people of faith, and communities of color. AARP submitted a comment in support of disparate impact that illustrates how the proposed rule will negatively affect older Americans who simply want to age in place in their communities. Other groups who have submitted comments on behalf of impacted individuals include National Association of Real Estate Brokers, National Association of Hispanic Real Estate Professionals, Asian Real Estate Association of America, Lending Club, Howard University School of Law, New America’s Open Technology Institute and the National Low Income Housing Coalition.
“A vast majority of housing discrimination cases are unreported, which is why it’s so critical that we come together to lift up the voices of those who would be harmed by this proposed rule,” said Lisa Rice, president & CEO of NFHA. “Thousands of people across the country have come together to support disparate impact and to let HUD know that we will not stand by and watch them attack this essential civil rights tool.”
Leaders of the National Fair Housing Alliance (NFHA), The Leadership Conference on Civil and Human Rights, NAACP Legal Defense & Educational Fund, Inc., Lawyers’ Committee for Civil Rights Under Law, Poverty and Race Research Action Council, American Civil Liberties Union, and Center for Responsible Lending launched the Defend Civil Rights campaign in August to express opposition to this proposed rule and encourage comments to HUD.
Coalition members in oppostion
Long Island Housing Services is a member of NFHA and supporter of the Defend Civil Rights coalition
“Through the mobilization of tens of thousands of grassroots advocates in the public comment process, the civil rights community has demonstrated that we will not allow this administration to turn back the clock on civil rights without a fight,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “Now, HUD must do the right thing and rescind this proposed regulation. Our ability to combat structural racism in housing depends on it.”
“When lenders and property owners discriminate against people looking for homes, it jeopardizes the foundation for building our very best lives,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “If the Trump administration succeeds in rewriting federal housing protections, companies will have an easier time taking advantage of families and millions of people will have a harder time fighting back. Our government should be committed to protecting people’s right to live wherever they choose. We urge Department of Housing and Urban Development officials to get on the right side of progress and strike down this proposed rule.”
PRRAC Executive Director Philip Tegeler called the Notice of Proposed Rulemaking “a deeply cynical proposal that would put most types of modern housing discrimination beyond the reach of the courts.”
PRRAC Deputy Director Megan Haberle also stressed that “HUD is ignoring the historical and current practices that continue to drive segregation in our cities and metro areas.”
The campaign drove thousands of comments to HUD opposing the Trump administration’s attack on disparate impact and the fundamental civil rights of millions of people. Coalition members and allies voiced their opposition to the rule in CNBC, Salon, San Francisco Chronicle and American Banker, and in local media outlets across the country, including Detroit Free Press, Indiana Lawyer, Richmond Times-Dispatch and Inforum (North Dakota).
Among the thousands of comments submitted in opposition to the rule, signers include:
- 11 Representatives from Illinois
- 13 Former Department of Justice Officials
- 22 State Attorneys General
- AI NOW Institute and Center on Race
- Asian Real Estate Association of America, National Association of Hispanic Real Estate Professionals and National Association of Real Estate Brokers
- Center on Budget and Policy Priorities
- Center for Responsible Lending
- FTC Commissioner Rohit Chopra
- The Leadership Conference on Civil and Human Rights
- Manufactured Housing Institute
- NAACP Legal Defense & Educational Fund
- National Association of Affordable Housing Lenders
- National Fair Housing Alliance
- National Low Income Housing Coalition
- National Women’s Law Center
- Poverty and Race Research Action Council
- Real Estate Trade Association
- Senator Tammy Duckworth (D-IL)
- United State Commission on Civil Rights
- Western Center on Law & Poverty
- Long Island Housing Services strongly opposes the Deactivation of the Disparate Impact Rule
- LIHS 2018-08-20 HUD Disparate Impact ANPR Comment 8/20/19 (pdf)
Key Quotes in Support of Disparate Impact:
- Defend Civil Rights campaign leaders
- Policymakers & government officials
- Other housing, law, real estate, and civil rights groups
Defend Civil Rights campaign leaders
“HUD now proposes to change the 2013 Rule in multiple ways. The cumulative effect of these proposed changes would be to require dismissal of what should be meritorious disparate impact claims under Supreme Court law, including dismissal of the types of cases the Supreme Court has described as “heartland” disparate-impact suits. In the process, the proposal would eliminate the duty and incentive of regulated entities to seek out less discriminatory alternatives. The Proposed Rule would…prevent the FHA from serving its intended purpose of “moving the Nation toward a more integrated society…Each year, there are over 4 million instances of discrimination impeding people’s ability to secure affordable insurance products, access quality credit, rent affordable and safe housing, and obtain accessible housing units. Discriminatory policies and practices make it more difficult for survivors of domestic violence, families with children, and returning veterans to obtain or keep housing. HUD must vigorously enforce, rather than undermine, the strong laws that level the playing field and give everyone a fair shot.”
“Civil rights laws such as the Fair Housing Act have gone a long way in reducing overt, intentional discrimination against protected classes. That does not mean that such laws have eliminated discriminatory intent. Rather, such intent is now more likely to be concealed, and it is more likely that members of protected classes are unaware that they have ever been discriminated against. Statistical evidence of racial disparities may be the only indicator of impermissible racial discrimination that, unintentional or intentional, must be addressed. This proposed rule would make it much more difficult to do so, regardless of intent.”
“It is well-established that, for decades, disparate impact liability has been an effective legal tool in many contexts where African Americans have suffered disproportionate harm in housing and lending. Discriminatory housing and lending practices carry even greater costs for communities, as they directly impact access to education, employment, health care and other aspects of daily life. The proposed rule stands to remove protections for the African American community at a time where families are still working to recover from a history of overt discrimination, the racially disparate consequences of the Great Recession and ongoing efforts to deny African Americans their civil and constitutional rights. The current Disparate Impact Rule must be preserved and HUD should focus its efforts on vigorous enforcement.”
“This NPR threatens to undermine decades of hard-won gains in the fight for equity in housing policy and the housing market. By making it practically impossible for victims of discrimination to vindicate their fair housing rights, the NPR is inconsistent with the text and purpose of the Fair Housing Act, as well as with Justice Kennedy’s decision in the ICP case. Cases applying the disparate impact standard to the problem of exclusionary zoning illustrate how the NPR is fatally flawed as the manner in which the NPR will prevent this administration from achieving its own stated policy goals. In light of the near unanimous view of the federal courts that ICP and HUD’s 2013 rule on this subject are consistent, there is no need for this harmful NPR.”
“The proposed rule will have a toxic effect on the mortgage lending industry. The Fair Housing Act’s
disparate impact doctrine has played a critical role in making fair housing available to all, while at the
same time making the lending industry better at evaluating creditworthiness. A ban on unjustified
disparate impact has encouraged the lending industry to systematically scrutinize its procedures and
requirements to ensure that lenders more precisely measure creditworthiness and lending practices do
not have unnecessary discriminatory impact. Thus, financial products are more widely available to
people and communities historically denied them. At the same time, the lending industry has been able
to identify a larger number of credit-worthy borrowers, continue to evaluate risk in a less discriminatory
manner, and increase its profits. Backtracking on disparate impact theory will hurt borrowers’ access to
safe and affordable mortgage credit as well as hurt lenders’ bottom line.”
“A rule that removes perpetuation of segregation from within the meaning of disparate impact, places onerous burdens of proof on complainants, permits so-called ‘legitimate’ justifications without regard to discriminatory effect and creates safe harbors for discriminatory conduct contravenes HUD’s duty to further fair housing. In the case of land-use practices, it removes from the definition of prohibited conduct a result that lies at the ‘heartland’ of disparate impact doctrine and therefore abdicates HUD’s ‘affirmative duty to eliminate… racially discriminatory practices.’ TDHCA v. ICP, 135 S.Ct. 2522; Clients’ Council v. Pierce, supra. With respect to lending and insurance, such a rule protects conduct that deprives protected groups of homeownership opportunities and recalls the deliberate practices of FHA in redlining and loan denials, all to the purpose of encouraging and maintaining ‘the separation of the races.’ TDHCA v. ICP, 135 S.Ct.2514.”
“As a nation, we have a shared interest in ensuring that housing opportunities are available to every individual, regardless of their personal characteristics. The FHA prohibits intentionally discriminatory acts and facially “neutral” policies that disproportionately limit housing opportunities based on race, color, national origin, religion, sex, familial status, and disability. Fully realizing the promise of the FHA for every person in the United States is central to HUD’s mission.
Disparate impact legal theories have been essential to the ACLU’s fight to protect access to fair housing and housing finance. The ACLU and many of its state affiliates have brought disparate impact claims under the FHA to challenge myriad discriminatory housing policies and practices—including overly restrictive tenant-screening policies and unjust municipal ordinances—across the country.”
Policymakers & government officials
“The proposed changes to the disparate impact rule make clear that HUD is not interested in upholding its mission ‘to create strong, sustainable, inclusive communities and quality affordable homes for all,’ and to ‘build inclusive and sustainable communities free from discrimination.’ HUD should focus on upholding these values and enforcing the Fair Housing Act in a way that allows all victims of systemic discrimination fight against discriminatory housing policies and practices.”
Representative John Lewis (D-GA)
“The proposed changes to HUD’s disparate impact standards are an alarming step backwards and would return our nation’s housing policy to a darker time. It would reverse nearly half a century of progress and hard-earned protections against housing discrimination. Discrimination in any form is wrong — regardless of the intent, and I believe that the Federal government should strive to enhance the rights of all people. We should not serve as an accessory to efforts to reverse hard-fought advancement.”
HUD’s proposed rule would weaken the disparate impact standard and undermine all of this vital progress. By proposing safe harbor defenses for housing market actors that use algorithms in housing and credit application decisions or the failure to collect demographic data about their business and product lines, HUD is positioning the housing market to be rife with discrimination on an order of magnitude not unlike the government-sponsored policies that baked residential segregation into the American landscape prior to the passage of the Fair Housing Act. By eliminating the burden-shifting framework expressly supported by decades of legal precedent and replacing it with a five-prong standard that makes it impossible for plaintiffs to establish a prima facie case, HUD is flagrantly abandoning a long-held standard for combatting illegal discrimination. And by proposing immunity for practices or policies that are more profitable than reasonable non-discriminatory alternatives and defenses regarding practices that involve the use of statistics or algorithms, HUD has shown that it is more concerned with the interests of market actors than with those of everyday Americans.
“This proposal appears to fundamentally misunderstand how algorithms, big data, and machine learning work in practice. It would provide safe harbors to the same technologies at issue in HUD’s own action against Facebook, a complaint which details the many ways that platforms can discriminate by design.
My comment outlines three arguments against HUD’s proposed changes. First, algorithms are not neutral, and even valid inputs can produce discriminatory results. Second, it is inappropriate to create safe harbors around technologies that are proprietary, opaque, and rapidly evolving. Finally, outsourcing liability for algorithmic discrimination to third parties distorts incentives and could lead to a race to the bottom among vendors.”
“Based on our experience enforcing fair housing laws and addressing discrimination in housing and lending, we firmly advise that no amendments are warranted. The current Disparate Impact Rule strikes the proper balance between promoting an integrated society and protecting housing providers from unmeritorious discrimination claims. Indeed, the Rule is entirely consistent with the United States Supreme Court’s 2015 ruling in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.,3 which HUD has no power to alter, and other developments since 2013 only reinforce the need for it to remain unchanged.”
“The proposed rule represents a radical departure from the settled approach to disparate impact claims that the Departments of Justice and Housing and Urban Development, as well as the courts, have taken under the FHA. It is not justified by—and is indeed in conflict with—the Supreme Court’s decision in Inclusive Communities. The proposed rule will make it more difficult to achieve the FHA’s goals of nondiscrimination and an integrated society.”
“On Friday October 18, the Commission submitted a public comment in opposition to HUD’s Proposed Rule on the disparate impact standard under the Fair Housing Act. The Commission, by majority vote, has very strong concerns that the Proposed Rule will impose substantial new obstacles for victims of discrimination and will undermine the protections of the Fair Housing Act, thereby substantially undermining necessary civil rights protections in area about which the Commission and our State Advisory Committees continue to receive compelling evidence of need for meaningful federal corrective action.”
Other housing, law, real estate, and civil rights groups
“The existing Disparate Impact Rule is practical and effective. It incorporates established judicial law prior to its promulgation and is consistent with the Supreme Court’s ruling in Inclusive Communities, decided subsequently. In fact, Inclusive Communities quoted the existing Disparate Impact Rule in detail without any indication that it did not approve of HUD’s interpretation, analysis, or implementation of disparate impact under the FHA. The Supreme Court confirmed in Inclusive Communities that disparate impact claims under the FHA are available – and necessary – to address policies that cannot be readily challenged under disparate treatment theories when they unnecessarily exclude people from housing based on a protected class. HUD’s proposed rule, in contrast, would remain a disparate impact theory in name only, and would effectively limit its application to disparate treatment cases. Therefore, in order to implement and enforce the FHA, HUD’s existing rule should not be undermined.”
“… it is not clear how the courts will identify an ‘objective and unbiased neutral third party’ to approve of algorithms, particularly when many such algorithms are closely guarded by their makers and are protected as trade secrets. This kind of hidden-box safe harbor, at a time when third-party data analytics are becoming ubiquitous in housing, will inevitably shelter discriminatory practices Congress prohibited in the Fair Housing Act.”
“The Fair Housing Act was passed in the wake of Martin Luther King Junior’s assassination with the goal of moving closer to some of the ideals he gave his life to pursue – ending segregation and ensuring that all people could live in the community of their choice regardless of the color of their skin. This landmark civil rights law has been a critical tool in moving towards a more integrated nation where everyone can live in the community of their choice; but we have a long way to go before realizing its goals. HUD’s proposed rule profoundly undermines the Fair Housing Act (FHA). If finalized, the rule will make enforcement of the FHA’s protections impossible except in cases where the perpetrator of discriminatory conduct announces their ill intent. Corporate interests, including the insurance companies that this Rule appears intended to benefit, are too sophisticated to state their intent to discriminate.”
“We appreciate HUD’s consideration of how to improve the fair lending framework, for the benefit of
borrowers and lenders. Unfortunately, we believe that the well-intentioned reforms proposed would
put innovation at risk. Regulatory stability, and the ability to assure stakeholders that the regulatory
framework addresses the risk of unintentional discrimination, is critical for the ability of market
participants to invest in innovation that is improving access to capital, and lowering the cost of credit, in
“Women of all backgrounds—particularly those facing additional barriers due to race, disability, gender identity, sexual orientation, and immigration status—should have robust protections under the Fair Housing Act. Property owners, housing providers, and local governments are endlessly creative in crafting and adopting discriminatory policies that make it harder for women to access safe and affordable housing. The Center urges HUD to immediately withdraw the Proposed Rule and instead advance housing policies that strengthen – not undermine – the disparate impact theory that allows for stable, safe, and affordable housing for all.”
“HUD’s proposed rule would make it so difficult to bring disparate impact cases that it would likely have the practical effect of eliminating challenges to residency preferences and voucher discrimination policies, among other practices that make it harder for people to rent a home with a voucher. Without feasible disparate impact claims, voucher participants may face even greater challenges with using vouchers in their neighborhood of choice, which would reinforce segregation patterns and diminish the voucher program’s ability to carry out its purpose of giving participants choice and combatting segregation.”
“Zest agrees with HUD that algorithmic models, if used responsibly, can extend access to credit to otherwise underserved communities. Our own experience developing machine learning underwriting models bears this out. However, we are concerned that HUD’s proposal—in particular the defenses for allegations based on discriminatory effects caused by models—risks encouraging the use of opaque and flawed models in ways that would threaten consumers and unnecessarily perpetuate discrimination.”
“Racial discrimination in housing has a long, disturbing history. It was a predominant practice and policy of the Jim Crow era and a major focus of the civil rights movement, exemplified by Dr. Martin Luther King, Jr.’s 1966 campaign in Chicago for fair housing. In enacting the FHA, the federal government signaled its will to combat this manifestation of racism. Although racial discrimination continues to be all too prevalent in the realm of housing, the FHA has served as an important legal tool in challenging it. If HUD adopts this rule, it will dramatically undermine the FHA, enable racially discriminatory housing practices, and further disadvantage communities of color more generally. At a time when racial discrimination increasingly manifests through the use of algorithmic tools alongside explicit, intentional racially discriminatory action, the animating spirit of the FHA demands that HUD reject a proposed rule that will erect impossibly high hurdles for countless victims of racial discrimination. We therefore urge HUD to withdraw the proposed rule.”
“Disparate impact cases are already difficult to prove under the current rule. The proposed rule is one more example of HUD’s unrelenting actions aimed at vitiating fair housing protections built over years of legislative, judicial, and administrative efforts to combat discrimination and institutional segregation. The proposed rule would dismantle an important enforcement tool for combatting discrimination by overwhelmingly favoring those accused of discrimination. The practical effect of the proposed rule would be to require people experiencing housing discrimination to show that a housing provider, government, or business intended to discriminate. That is why we oppose the proposed rule and urge HUD to withdraw it.”
“If implemented, the Proposed Standard will make it more difficult for many households of color (including those with children) to find and maintain safe, healthy, stable, and affordable housing – in addition to the likelihood that ongoing and increased segregation will result in environmental injustices in many neighborhoods. As a result, there is likely to be a wide range of negative effects on people’s physical, mental, and social health; on their access to opportunities that support healthy living; and on the conditions that shape their ability to live healthy lives.”
“Manufactured homes remain the most affordable homeownership option available in the U.S. today. MHI reiterates its appreciation for the efforts of this Administration, including the Department of Housing and Urban Development, to prioritize the importance of manufactured housing as a critical affordable housing option and to work to reduce barriers to its use. MHI also appreciates the sincere desire of HUD to bring more legal clarity to the standards used in alleging and defending disparate impact cases. In this spirit, we ask that HUD consider changes to the proposed rule to ensure that legitimate challenges to discriminatory local zoning can be brought using the standard of disparate impact.”
“These comments are intended to aid HUD in faithfully executing a disparate impact rule that accurately reflects controlling case law and preserves the right of injured people to obtain legal relief for unlawful housing practices that have a disparate impact on protected classes under the Fair Housing Act (“FHA”). The legal theory of disparate impact, which has been recognized by courts for over forty years, is critical to achieveing the FHA’s twin objectives of ending housing discrimination and integrating communities.”
“Survivors of gender-based violence should feel protected under the Fair Housing Act. Property
owners, housing providers, and local governments are increasingly enforcing discriminatory
policies that bar women from accessing housing and even evict them from their homes. The
National Coalition Against Domestic Violence urges HUD to immediately withdraw the
Proposed Rule and instead advance housing policies that strengthen the disparate impact theory
that allows for stable, safe, and affordable housing for all.”