HUD has announced it will be seeking public comment [1] on whether its 2013 Disparate Impact Regulation is consistent with a more recent 2015 Supreme Court ruling that clarifies liability as it pertains to disparate impact claims.
"HUD remains committed to making sure housing-related policies and practices treat people fairly," said HUD Secretary Dr. Benjamin Carson. "We will always challenge any practice that discriminates against people the law protects."
The Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. determined [2] that disparate impact claims—claims made on actions that have a discriminatory consequence, even if there is no discriminatory intent—can provide a framework for liability under the Fair Housing Act.
As noted in HUD’s announcement of the call for public comment, “While the Supreme Court referred to HUD's Disparate Impact Regulation in its Inclusive Communities ruling, it did not directly rule upon it.”
Following the 2015 Supreme Court ruling, the Obama administration implemented the Affirmatively Furthering Fair Housing (AFFH) Rule, which directed any community receiving block-grant funding from HUD to complete a comprehensive Assessment of Fair Housing.
Under the AFFH rule, communities must review their housing policies and submit an Assessment of Fair Housing (AFH) plan to HUD outlining their plans to combat discriminatory policies. Failure to do so could cost those communities their block grants and other federal housing aid.
On January 5, 2018, HUD announced [3] it would be extending the deadline for AFH submissions until 2020. The HUD notice reads, in part, “Based on the initial AFH reviews, HUD believes that program participants need additional time and technical assistance to adjust to the new AFFH process and complete AFH submissions that can be accepted by HUD.”
HUD Secretary Dr. Benjamin Carson has publically voiced his criticism of both the Supreme Court ruling and the AFFH Rule. In a 2015 op-ed [4] for the Washington Times, Carson said, “These government-engineered attempts to legislate racial equality create consequences that often make matters worse. There are reasonable ways to use housing policy to enhance the opportunities available to lower-income citizens, but based on the history of failed socialist experiments in this country, entrusting the government to get it right can prove downright dangerous.”
Last week, the New York Times reported [5] that a coalition of civil rights advocacy groups planned to sue the Trump administration over HUD’s delays in AFFH implementation. As reported by the Times, “The suit claims that Mr. Carson is leaving HUD without a system to prevent a pattern of discrimination in the allocation of $28 billion in disaster relief funding after a succession of natural disasters, including Hurricane Harvey, last year.” On Monday, May 14, New York Gov. Andrew Cuomo, himself a former HUD secretary, announced that the state of New York would be joining the lawsuit, as reported by the Washington Post [6]. We have reached out to HUD for comment.