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.