President Biden today signed a presidential memorandum that directs HUD to examine the effects of the previous administration’s regulatory actions that may have undermined fair housing policies and laws. It directs HUD to take steps necessary based on that analysis to fully implement the Fair Housing Act’s requirements.
A White House fact sheet on the memorandum, entitled “Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies,” states that the “Fair Housing Act requires the federal government to advance fair housing and combat housing discrimination, including disparate impact discrimination that appears neutral but has an unjustified discriminatory effect in practice.”
Disparate impact is a legal doctrine under the nation’s anti-discrimination laws that allows a court to consider a policy or practice discriminatory if it has a disproportionate “adverse impact” against any group based on race, national origin, color, religion, sex, familial status, or disability. A plaintiff in a disparate impact suit does need not to prove the defendant’s discriminatory intent; rather, the plaintiff must only show that the defendant’s action has a discriminatory effect on a protected class.
The disparate impact rule was adopted in 2013 during the Obama administration and the Trump administration substantially revised the regulation to make it much more difficult for a plaintiff to prove unintentional discrimination under the disparate impact rule. Last year a federal judge issued preliminary injunction that effectively prevented HUD from implementing the Trump-era rule.
The Biden memorandum issued today directs HUD to reassess and determine if the Trump-era disparate impact rule should be returned to the 2013 standard that made it easier to prove unintentional discrimination.
AFFH Successor Rule Under Review
Further, the memorandum also directs HUD to review the Trump administration’s Preserving Community and Neighborhood Choice regulation which replaced the Obama administration’s Affirmatively Furthering Fair Housing Rule (AFFH).
Under the Preserving Community and Neighborhood Choice rule, state and local housing authorities will receive funding if they take any steps that HUD finds is “rationally related to promoting fair housing, such as helping to eliminate housing discrimination.”
The Obama-era AFFH rule, which focused on eliminating racial segregation, required states, local governments and public housing agencies to conduct a more formal fair housing planning process than has been done in the past, as a condition of receiving federal funds.
Last year, then-HUD Secretary Ben Carson gave the following reason whys the agency was terminating the AFFH: After reviewing thousands of comments on the proposed changes to the Affirmatively Furthering Fair Housing regulation, we found it to be unworkable and ultimately a waste of time for localities to comply with, too often resulting in funds being steered away from communities that need them most.”
With today’s Biden memorandum, the new administration has signaled its intention to repeal the Trump rule and replace it with the Obama AFFH rule or a substantial similar regulation.