CLASP Responds to Reinstatement of HUD’s Discriminatory Effects Standard, Docket No. FR-6251-P-01

By Jesse Fairbanks

The cumulative impact of chattel slavery, segregation, and other racist housing and urban policies on the Black community, as well as our nation’s long history of excluding Native, Asian American and Pacific Islander (AAPI), disabled, and immigrant communities from federal housing programs has profoundly shaped which people in the United States experience excessive housing costs, predatory lending, concentrated poverty, exposure to lead and other toxins, eviction, homelessness, and wealth inequality. Today, racial disparities exist in all aspects of housing. Standardized enforcement of the Fair Housing Act’s (FHA) long-held discriminatory effects liability is necessary to uncover policies and practices that have an unjustified discriminatory effect—regardless of intent—and legally require that the practice be replaced. The three-step burdenshifting approach codified in the 2013 rule is simple yet effective in adjudicating fair housing cases.

In this brief comment, CLASP would like to affirm HUD’s historical analysis of the discriminatory effects standard (also referred to as the “disparate impact theory” or “disparate impact”), as well as offer examples of potential practices that—while facially neutral in their targeting of unnamed groups—violate the civil rights of people protected under the FHA. In our comments, we prioritize immigrants and people affected by the criminal legal system—most of whom rent due to historical exclusion from homeownership and other forms of wealth-building. Our views from a gender justice perspective were captured in the comment submitted by the National Women’s Law Center to which we signed on.