Fifty years after the enactment of the Fair Housing Act (FHA), housing discrimination remains a national disgrace in the United States. Across the country, a growing tide of housing providers, perhaps emboldened by Trump’s anti-“other” rhetoric, discriminate against the very communities the FHA was designed to protect. In 2017 alone, there were nearly 29,000 reported complaints of housing discrimination across the country. Despite growing diversity in population, residential segregation persists at alarming rates hurting local schools, property values, and much more. Just this year, Black homeownership rates dropped to a record low of 40.6% which is the lowest level recorded by the Census Bureau since 1950.
Despite this ongoing crisis, the Trump Administration proposed a new rule that will dismantle critical housing protections for the most vulnerable and marginalized communities.
In one of this administration’s most outrageous attacks on civil rights yet, proposed rule will make a mockery of one of the FHA’s most critical enforcement tools: the Disparate Impact Rule. The Rule allows potential victims of housing discrimination to challenge unjustified policies or practices that disproportionately harm them. Courts have recognized disparate impact liability under the FHA for decades, culminating in the Supreme Court’s 2015 decision affirming disparate impact liability in Texas Department of Housing & Community Affairs v. Inclusive Communities Project. There, the Court explained the significance of disparate impact liability: “[H]ousing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification . . . reside at the heartland of disparate-impact liability.” Under the Obama administration, the Department of Housing and Urban Development (HUD) acknowledged this principle by formally codifying the Disparate Impact Rule in 2013, and consistently affirming the existing Disparate Impact Rule through its fair housing enforcement and guidance as recently as 2016.
But this new proposed rule will weaken existing housing protections by imposing a significantly higher burden on victims of housing discrimination to prove their claims, making it nearly impossible to prevail. This change would make it harder to challenge forms of algorithmic discrimination — such as unjust tenant-screening tools or discriminatory marketing schemes — by providing special defenses for business practices that rely on algorithms or statistics, undoing decades of progress in advancing fair housing opportunities for all.
Why does Trump want to undermine this rule? Because it works. Disparate impact liability is a tool like none other in the law with numerous examples of how it has helped dismantle the many systemic barriers to fair housing. The Disparate Impact Rule has been critical in challenging covert or disguised forms of housing discrimination that otherwise escape easy classification. Advocates have invoked the Disparate Impact Rule in challenging discriminatory zoning regulations, predatory mortgage lending practices that charge excessive rates to people of color or people with disabilities, overly restrictive occupancy requirements that shut out families with children, and policies that threaten housing for survivors of gender-based violence and women of color.
Housing discrimination and segregation remain serious challenges for many people of color, particularly as property owners employ discriminatory screening policies. Just this year, the ACLU settled a lawsuit against a Virginia housing complex for its policy of denying any person with a felony conviction or certain misdemeanor offenses—no matter how long ago it happened or how serious the offense. The ACLU is also suing the City of Faribault, Minnesota, for its similar “crime-free” policy, which — given the disproportionate rates at which Blacks and Latinx people are charged with and convicted of crimes — unfairly hurts the most vulnerable among us. As HUD has recognized, excluding people with criminal records may constitute race discrimination in violation of the Fair Housing Act, thanks to disparate impact liability.
HUD’s proposed rule also threatens the safety and security of domestic violence survivors — the vast majority of whom are women. Domestic violence is a primary cause of homelessness for women and families, as survivors regularly report lacking housing options as a major barrier to escaping abuse. Even if they escape the abuse, survivors face discrimination in housing as a result. Congress has acknowledged that “women and families across the country are being discriminated against, denied access to, and even evicted from public and subsidized housing because of their status as victims of domestic violence.”
HUD itself has recognized that penalizing survivors for the abuse they endured can amount to sex-based discrimination, due to the disproportionate impact of domestic violence on women. In 2001, HUD issued a formal finding that a landlord’s policy to evict an entire household based on criminal activity at the home violated the Fair Housing Act’s protections against sex-based discrimination. The ACLU has continued to fight on behalf of survivors in need of housing by challenging similar discriminatory policies and nuisance or crime-free ordinances through the Disparate Impact Rule.
As required by the Fair Housing Act, HUD has an obligation to affirmatively further fair housing and to address the alarming rates of segregation throughout the country. But the proposed rule will erect nearly insurmountable barriers to fulfilling the Fair Housing Act’s goals, while harming those who already struggle to obtain safe and stable housing.
Safe and stable housing is key to the well-being of individuals and families across the country. That’s why the ACLU joined a national coalition to #DefendCivilRights by urging HUD to rescind its proposed rule. The ACLU urges all to submit comments to HUD in opposition of this harmful and cruel attack by October 18th.