October 9, 2026
The Honorable Scott Turner
Secretary
U.S. Department of Housing and Urban Development
451 7th Street NW
Washington, DC 20410-0500
Submitted via Regulations.gov
Re: HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard; Amendments to HUD’s Title VI Regulations [RIN 2529-AB09, Docket No. FR-6540-P-02]
The National Community Reinvestment Coalition (NCRC) appreciates the opportunity to comment on the supplemental notice of proposed rulemaking of the Department of Housing and Urban Development (HUD) that revises and removes disparate impact provisions in HUD’s regulations implementing Title VI of the Civil Rights Act.[1] These regulations currently “impose disparate impact liability on recipients of HUD Federal financial assistance” and require recipients of HUD funding to avoid taking actions that have an unjustified disparate impact based on race.[2]
NCRC is concerned that the removal of such requirements will reduce HUD’s ability to prevent federal housing resources from being used to reinforce historical and existing patterns of racial and economic inequality. NCRC urges HUD to withdraw the proposed amendments to its Title VI regulations and retain its longstanding civil rights safeguards against discriminatory effects produced by federal funding recipients’ policies and programs.
NCRC is a network of more than 700 community-based organizations dedicated to creating a nation that not only promises but delivers opportunities for all Americans to build wealth and attain a high quality of life. We work with community leaders and policymakers to advance solutions and build the will to solve America’s persistent racial and socio-economic wealth, income, and opportunity divides, and to make a Just Economy a national priority and a local reality.
Disparate Impact Addresses Discrimination Without Intent
Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in any program or activity that receives federal financial assistance. In 1963, President John F. Kennedy stated that “justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.”[3] He noted that direct and indirect discrimination are “invidious.”
Addressing indirect discrimination is important because it can be challenging to prove intent in housing discrimination. The disparate impact legal theory rests on the idea that policies and programs can appear facially neutral but produce discriminatory outcomes for certain populations.[4]
The Supreme Court endorsed the disparate impact legal theory under the Fair Housing Act, in the case Texas Department of Housing and Community Affairs v. Inclusive Communities Project (ICP), Inc. The ICP, a housing nonprofit, brought a disparate impact claim against the Texas agency, claiming that its allocation of housing tax credits directed affordable housing development in low-income minority communities, which reinforced segregation and restricted access to economic opportunity for low-income residents of color.[5]
The Supreme Court ruled in favor of the ICP’s disparate impact claim, with Justice Kennedy writing:
Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.[6]
HUD’s Title VI’s requirements are consistent with Inclusive Communities‘ conclusion that housing discrimination can occur even when there is no explicit intent to do so.
HUD’s Title VI regulations prohibit recipients of HUD federal funding from having policies and practices that result in an unjustified disparate impact. The regulations allow HUD to address federal funding recipients’ policies that cause a disparate impact, such as a neutral policy that disproportionately harms communities of color. For example, the regulations can address disparate outcomes in housing assistance that result from ostensibly neutral siting, funding allocation, program eligibility and screening, or administrative policies.
HUD has successfully used its Title VI authority to investigate and resolve discriminatory practices. For example, in 2015, it entered into an agreement with Medina Metropolitan Housing Authority regarding its policy of giving preference points to Medina County residents on its Section 8 Housing Choice Voucher waiting list. In the agreement, HUD states that it found no evidence of intentional discrimination, but the policy had the effect of subjecting protected classes to discrimination.[7]
Another example of HUD’s execution of this authority occurred in the aftermath of Hurricane Harvey regarding its investigation of the State of Texas’ allocation methodology for $1 billion in HUD’s disaster relief funds. In 2022, HUD reported its findings after investigating a disparate impact complaint. It found that the funding recipient, Texas General Land Office, used a methodology that resulted in less funding being dispersed to heavily impacted areas that were disproportionately Black and Latino.[8] Although the methodology in question was not intentionally discriminatory, it produced a disparate outcome in which communities of color received fewer resources to recover and rebuild.[9]
HUD’s Disparate Impact Provisions Remedy Historical Harms Against Communities
HUD argues that the disparate impact provisions in HUD’s Title VI regulations should be removed because it asserts that they violate the Equal Protection Clause. The proposal cites Students for Fair Admissions, Inc vs. President & Fellows of Harvard College[10] to support its argument that race cannot be used as a factor in remedying unjustified discriminatory outcomes and thus Title VI regulations can only prohibit intentional discrimination.
This argument is flawed, however, as the Students for Fair Admissions decision was explicitly limited to the use of race in admissions practices and does not bear any relevance to HUD’s Title VI regulations regarding disparate impact.[11] Furthermore, as previously contextualized, the Supreme Court has recognized disparate impact claims under the Fair Housing Act, acknowledging that a housing practice can be discriminatory even without proof of intent.[12]
The current disparate impact provisions of HUD’s Title VI regulations allow HUD to consider how facially neutral policies can reinforce existing patterns of racial and economic inequality. For example, like in Inclusive Communities, if a state receives a HUD grant to build affordable housing and in turn requires its grantees to build subsidized housing on low-cost land, it may disproportionally impact communities of color by concentrating the housing in low-income neighborhoods. While the state’s requirement that construction of subsidized housing on low-cost land is neutral, it could cause disproportionate harm to the residents of these housing developments because they would be in neighborhoods that may have unequal access to economic opportunities and amenities, such as well-funded schools, healthy foods, or transportation, in comparison to their counterparts in neighborhoods with higher property values. Because HUD’s disparate impact provisions allow the community to raise concerns over disparate impact, HUD could investigate the matter and attempt to correct the harm.
Communities of color, particularly Black communities, continue to be impacted by the historic legacy of redlining and segregation. HUD’s current disparate impact provisions ensure that the flow of federal resources and funding are remedying historic harms against communities, not exacerbating them.
Lack of Factual Evidence to Eliminate Disparate Impact Provisions
HUD asserts that enforcing the disparate impact provisions of Title VI regulations incurs significant administrative and compliance costs. However, HUD also acknowledges that it cannot quantify the costs attributable to its disparate impact enforcement efforts.
Between 2023 and 2025, HUD reports 500 active and 585 closed Title VI matters, but cannot identify which of these involve disparate impact enforcement.[13] HUD reported that it distributed $170 billion through approximately 9,800 grants and subsidies during that same period.[14] Given that it cannot quantify the specific disparate impact claims and costs of enforcement attributed to those claims, HUD has not provided a sufficient factual basis to justify eliminating disparate impact protections.
HUD should also consider the long-term impact of eliminating the Title VI disparate impact provisions. These provisions provide a mechanism for HUD to act to protect historically excluded communities from unequal access to housing resources such as rental assistance, disaster relief, and other critical resources provided by HUD’s funding recipients, as it has done since 1973.
Communities should have confidence that HUD will act on the disparate impact claims that they raise. Eliminating HUD’s authority to investigate and pursue communities’ disparate impact claims, related to siting, funding allocation, program eligibility and screening, or administrative policies, means that communities will bear the cost of such unequal access. Removing these long-standing civil rights safeguards could deepen the very economic inequality that these provisions were designed to counteract.
For these reasons, NCRC urges HUD to withdraw the proposed rescission of Title VI disparate impact provisions. Should you have any questions or comments, please reach out to NCRC’s Policy Advisor, Manan Shah at mshah@ncrc.org.
Sincerely,
Jesse Van Tol
President & CEO
National Community Reinvestment Coalition
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[1] HUD, HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard; Amendments to HUD’s Title VI Regulations Supplemental Notice of Proposed Rulemaking, 91 FR 51416 (proposed Aug. 10, 2026), https://www.federalregister.gov/documents/2026/08/10/2026-16228/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard-amendments-to-huds-title-vi.
[2] 24 C.F.R. Part 1 (2026).
[3] President John F. Kennedy, Special Message to Congress on Civil Rights and Job Opportunities H.R. Doc. No. 88-124 at 3 ((1963), https://www.presidency.ucsb.edu/documents/special-message-the-congress-civil-rights-and-job-Opportunities.
[4] Cong. Rsch. Serv., What is Disparate-Impact Discrimination? IF13057 (2026), https://www.congress.gov/crs-product/IF13057.
[5] Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015).
[6] Inclusive Communities, 576 U.S. at 540.
[7] U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, Voluntary Compliance Agreement between the U.S. Department of Housing and Urban Development and Medina Metropolitan Housing Authority, FHEO Case Nos. 05-14-0658-6 and 05-14-R001-6 (May 1, 2015).
[8] U.S. Department of Housing and Urban Development , Letter Finding Noncompliance with Title VI and Section 109, Case No. 06-21-1483-6/9 (Mar. 4, 2022), https://www.relmanlaw.com/media/cases/1258_Title%20IV%20Determination.pdf.
[9] In 2025, HUD closed the investigation and claimed that the Biden Administration “politicized enforcement” of the disparate impact provisions. However, HUD did not publish any evidence or findings to support this claim. U.S. Department of Housing and Urban Development, HUD Rescinds Biden-Era Politically Motivated Investigation into the Texas General Land Office (Jan. 28 2026), https://www.hud.gov/news/hud-no-26-009.
[10] Students for Fair Admissions, Inc vs. President & Fellows of Harvard College 600 U.S. 206 (2023) (SFFA)
[11] Id.
[12] Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015).
[13] 91 Fed. Reg. 51416, 51419.
[14] Id.
