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In another Fair Housing development this summer, HUD finalized their Disparate Impact rule, a move that will strip away essential fair housing protections. For decades disparate impact has allowed for challenges to policies and practices that disproportionately harm people protected by fair housing laws. It has been affirmed by the Supreme Court and utilized in fair housing cases for over 45 years.
This disappointing new rule from HUD has the potential to have a devastating impact, especially on Black and Brown communities. At CNY Fair Housing, we submitted twelve pages of comments to HUD, citing our disagreement with the proposed rule. In short, we believe:
HUD's existing Disparate Impact rule was already consistent with the Supreme Court's 2015 ruling in the Inclusive Communities Project case.
HUD has now eliminated perpetuation of segregation as a cognizable claim under the Fair Housing Act (FHA), which is both entirely arbitrary and inconsistent with existing precedent.
The proposed rule created a new pleading standard for disparate impact cases, which is outside of HUD's authority.
HUD changed the evidentiary burden-shifting standard, an action contrary to legal precedent.
Algorithm-based defenses (e.g. A landlord allegedly has an income policy that disparately impacts people with subsidies. The landlord can use the fact that he puts applicant's information into a computer system which accepts or rejects the tenant as a defense) are inconsistent with the FHA.
At CNY Fair Housing, we believe there was no justification to make these changes. We will continue to fight for Fair Housing here in Central and Upstate New York, regardless of this final ruling.
To read the final ruling from HUD, please click here.