CityLab: How HUD could reverse course on racial discrimination

CityLab, June 21, 2018: How HUD could reverse course on racial discrimination

HUD adopted a final rule on the disparate impact provision in 2013, formally recognizing a ban on any “facially neutral practice that has a discriminatory effect.” The rule confirmed the department’s long-held reading of the Fair Housing Act, making its use consistent across jurisdictions. The U.S. Supreme Court further weighed in on disparate impact in 2015, affirming in a 5-4 decision that civil rights law indeed prohibits policies that indirectly affect minorities adversely. Eleven earlier federal appellate courts all confirmed the doctrine.

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While the disparate impact doctrine has guided employment law for decades, its application in housing was settled more recently by the courts. By reopening the issue, critics say that Carson may be trying to weaken the rule in favor of industry—and in conflict with established jurisprudence.

“This new advance notice of proposed rulemaking appears to ask the kinds of questions that you might ask if you were trying to water down a rule,” says Jesse Van Tol, CEO of the National Community Reinvestment Coalition, a nonprofit that promotes fair practices in lending and housing. “Are there loopholes that should be provided? Is the rule burdensome?”

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