HUD's Disparate Impact Standard: An Assault on Civil Rights

Statement from Alliance for Housing Justice on HUD’s publication of a final rule on the Disparate Impact standard

For more information contact: Liz Ryan Murray,

The Trump Administration continued its assault on the landmark Fair Housing Act and the people it protects, attacking People of Color and the very bedrock of our fair housing system. If put into practice, the final rule on the disparate impact standard will make it nearly impossible to hold banks, landlords, and insurers accountable for actions that discriminate against and disproportionately harm People of Color, women, the differently-abled, families with children, and other marginalized communities. 

The Disparate Impact Standard has been one of the most effective tools for advocates, individuals, and communities to stop practices that may appear neutral on their face, but that inflicted outsized harm to people already struggling in our structurally unequal system. For example, the predominantly white St. Bernard Parish in Louisiana passed an ordinance in the wake of Hurricane Katrina that would only allow rentals to ‘blood relatives’ of existing Parish residents. That law was struck down as a violation of the Fair Housing Act and was cited at the Supreme Court as an example of how the Disparate Impact standard should be applied.    

There are a few key ways in which the rule would make it nearly impossible for victims of discrimination to bring successful disparate impact claims. First, the rule turns upside down the long-standing practice of having the defendant prove that a potentially discriminatory policy or practice is legally justified. This rule would flip that on its head and demand that victims of discrimination rebut every conceivable justification at the outset of a case. Second, the rule would allow defendants to reject a less discriminatory alternative policy if that alternative policy added even a  small amount of cost. Meaning, even a marginal lowering of profit would be enough to outweigh civil rights. Third, the rule creates a vague, ambiguous exemption for predictive models that appears to confuse the concepts of disparate impact and intentional discrimination. This will create chaos and may result in the effective elimination of disparate impact in broad swaths of the economy and housing market. 

We are in the midst of a national movement in which people across the country are voicing a renewed rejection of our racially unjust systems. We are calling for the dismantling of oppressive housing, policing, employment, and education systems that perpetuate segregation. The Trump Administration’s response is to throw fuel on the fires of division, discrimination, segregation, and hatred. At a moment where millions of vulnerable people are at imminent risk of being evicted and foreclosed on, Ben Carson and Donald Trump’s attention is focused on furthering the race, class divide.

Our current system of housing is broken, and we cannot lose sight of solutions that will ensure secure, affordable, community-controlled, and dignified housing for all. We need our policy leaders to listen to the voices of those experiencing the crisis and act by canceling rent, mortgages, and utility payments, while extending existing eviction moratoriums well beyond the COVID-19 crisis. We do not need them to spend their time deepening structural inequities. 

We call on Congress to reject this final rule, pass meaningful relief for tenants and mortgage holders, and to compel Secretary Carson to do his job of safely and affordably housing our nation. 

The Alliance for Housing Justice is a coalition of organizations, including: Right to the City Alliance, PolicyLink, Lawyers Committee for Civil Rights Under Law, Poverty & Race Research Action Council, and Public Advocates — seeking to align ourselves as legal, advocacy, organizing and policy groups to advance housing justice.