On June 25, HUD published a proposal to reinstate the disparate effects standard the department published as a final rule in 2013 and modified in 2020. PHADA commented on HUD’s 2011 proposal for a disparate effects standard in fair housing monitoring, oversight, and enforcement in 2012, and these August 24, 2021, comments largely mirrored PHADA’s earlier feedback. The association urged HUD to:
- Explicitly include disparate effects standards announced by the U.S. Supreme Court in 2015 in its Inclusive Communities decision.
- Complaints may not be based exclusively on statistical evidence,
- Complaints must be based on a robust causal link between a policy or practice and a disparate effect,
- Complaints must concern policies or practices that are artificial, arbitrary, and unnecessary, and
- Complaints may not concern policies or practices that serve a valid interest of a respondent.
- Remove “predictable” disparate effects from the rule, and
- Remove policies or practices that “perpetuate” segregated housing patterns from the rule.
HUD will review comments it receives and will then publish a final disparate effects standard for fir housing complaints. The department must still publish rules governing the process it will use to monitor and oversee its responsibility to Affirmatively Further Fair Housing (AFFH) shared by its program partners.