Jim Armstrong, PHADA Policy Analyst
On August 19, 2019, HUD published a proposed rule that would modify its regulation implementing a disparate impact standard for fair housing complaints. The current rule was published for effect in 2013. At that time, several fair housing cases were reaching the United States Supreme Court and PHADA urged HUD to wait until the court acted on some of these cases before finalizing its treatment of disparate impact in regulation. HUD disregarded that suggestion, and the court published a decision concerning disparate impact in Texas Department of Housing and Community Affairs v. Inclusive Communities (Inclusive Communities) in 2015. The court’s opinion laid out a number of standards it believed should be applied when a fair housing complaint relies on disparate impact claims. In PHADA’s opinion, HUD’s 2013 regulation did not conform to the standards announced by the court in Inclusive Communities. In 2018, HUD published an Advance Notice of Proposed Rulemaking (ANPR) announcing that, in light of Inclusive Communities, the department was reconsidering its 2013 regulation and invited public comment concerning how that regulation should be amended. PHADA submitted comments in response to that notice and also endorsed comments prepared by Harry Kelly of Nixon Peabody for a consortium of housing industry advocacy organizations. In general, these comments argued that HUD’s 2013 rule did not comply with the court’s standards and urged HUD to incorporate those standards into the disparate impact regulation. The current proposed rule represents HUD’s effort to move the disparate impact rule into conformance with Inclusive Communities. The notice of this proposed regulation and PHADA’s comments are available on PHADA’s website.
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