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HUD’s Proposed Changes to its Disparate Impact Rule Draw 45,740 Comments

Commenters Surprisingly Diverse

Jim Armstrong, PHADA Policy Analyst

The history of HUD’s rule concerning the treatment of fair housing disparate impact claims is long and winding. The department chose to publish a final disparate impact rule in 2013 while several fair housing complaint cases were pending in various federal courts. In January 2015, the Supreme Court of the United States issued a decision commonly referred to as, “Inclusive Communities,” where the court recognized the validity of disparate impact claims under the Fair Housing Act and also described a series of standards and constraints on those claims. In PHADA’s view, elements of HUD’s 2013 final rule were inconsistent with the court’s Inclusive Communities decision.

In June 2018, HUD published an Advanced Notice of Proposed Rulemaking in which it announced that the department was reconsidering its 2013 final rule in light of Inclusive Communities and invited the public to submit comments concerning ways in which the rule could be amended to conform to the standards announced by the Supreme Court in 2015. By the August 2018 deadline for submission of comments, HUD had received 1,923 submissions that included PHADA’s comments and comments prepared by Harry Kelly of Nixon Peabody on behalf of several multifamily rental housing associations. PHADA was one association endorsing Kelly’s comments.


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