(Hartford, Conn.) – The U.S. Department of Housing and Urban Development’s (HUD) new disparate impact rule violates the Administrative Procedure Act, and would make it virtually impossible for victims of discrimination to prevail when they challenge policies that perpetuate housing segregation or disproportionately harm members of protected classes, a lawsuit filed today against HUD and Secretary Ben Carson argues. The lawsuit claims that the new rule, published on Sept. 24, 2020, will eviscerate the Fair Housing Act’s standards for discriminatory effects claims, closing off HUD’s administrative enforcement process and potentially the courthouse doors to victims of discrimination.
The litigation, Open Communities Alliance v. Carson, was filed in U.S. District Court for the District of Connecticut. The Lawyers’ Committee for Civil Rights Under Law, the American Civil Liberties Union, the ACLU of Connecticut, the Poverty & Race Research Action Council, and the law firm of Cohen Milstein Sellers & Toll PLLC are representing the Open Communities Alliance and SouthCoast Fair Housing.
“This rule makes it virtually impossible for communities of color to prevail when challenging housing discrimination, and combined with President Trump’s race-baiting rhetoric about efforts to build affordable housing in predominantly white suburbs, it is clear that the administration is engaged in a concerted attack on the housing choices of people of color and Black households,” said Thomas Silverstein, an attorney with the Lawyers’ Committee for Civil Rights Under Law. “The civil rights community is fighting this rule with every tool at its disposal, and we expect that the courts will see right through this brazen attempt to roll back 50 years of civil rights.”
The Fair Housing Act includes a discriminatory effects framework, which prohibits policies and practices that perpetuate housing segregation, or disproportionately harm individuals on the basis of protected characteristics. These characteristics include race, color, sex, disability, religion, national origin, and familial status. The ability to challenge exclusionary policies has been critical to rooting out systemic housing discrimination, and ensure that complaints regarding landlords’ refusal to rent to tenants with criminal records and zoning policies that prevent the development of affordable housing in predominantly white areas can be rectified. Under the new 2020 rule, plaintiffs or complainants filing administratively with HUD would have to gather an excessive amount of evidence to prove their claims and would have to preemptively anticipate and rebut the anticipated justifications of defendants or respondents, ensuring that perpetrators would almost never be penalized for discrimination.
“The U.S. Department of Housing and Urban Development’s new rule undermines the last fifty years of civil rights work to achieve fair housing and yet again demonstrates the Trump administration’s agenda to perpetuate systemic racism throughout the country,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The right to fair housing is a central right in our democracy and we will continue to fight this administration’s efforts to strike rules that have helped to promote racially integrated communities across our country.”
HUD has also failed to provide a coherent justification for the changes that this latest rule makes to a 2013 HUD rule that set forth a fair and equitable disparate impact standard. With respect to many issues, HUD has failed to even acknowledge that it is making serious substantive changes to the disparate impact standard, including by eliminating perpetuation of segregation claims. In 2015, the U.S. Supreme Court affirmed the vital purpose of the Fair Housing Act’s disparate impact standard in its decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project.
Plaintiffs said the following:
“For generations, Connecticut’s restrictive laws [on where housing authorities can operate] have resulted in a concentration of poverty in communities of color and prevented many Black and Latino families from moving to the communities of their choice,” said Erin Boggs, Executive Director of Open Communities Alliance. “Now the Trump administration has cut off the legal avenue to remedy this wrong. We’re committed to stopping this effort which, at its core, is working to prevent historically disenfranchised communities from asserting their Fair Housing rights.”
“Unfortunately, we continue to see business practices that have the effect of excluding families with children from housing opportunities in certain areas. These practices make it harder for families with children to remain housed or find housing and undermine the intent of the Fair Housing Act,” said Kristina da Fonseca, Executive Director of SouthCoast Fair Housing. “The last seven months have shown us that it is as important as ever to have all the necessary tools to tackle discrimination at our disposal. Our communities are standing up against discrimination and they deserve to have “disparate impact” claims as a way forward.”
Other parties to the suit said the following:
Sandra Park, senior staff attorney with the ACLU Women’s Rights Project: “The Trump administration has launched yet another attack on civil rights by gutting one of the key tools used to defend our right to fair housing and combat housing discrimination. We will fight to restore these critical protections that ensure equal housing opportunities for all.”
Elana Bildner, ACLU of Connecticut staff attorney: “Housing is a human right, and people should be able to fight for that right if they face housing discrimination. The Trump Administration’s changes would take away a critical tool for people to dismantle systemic barriers to fair housing and to fight for their abilities to access and keep their homes. We are committed to fighting this attack on fair housing in court.”
Brian Corman, attorney with civil rights law firm Cohen Milstein Sellers & Toll: “When your family is thrown into homelessness, precarious living conditions or a never-ending cycle of poverty because of housing discrimination, it doesn’t matter whether that discrimination was intentional or the result of seemingly neutral business practices that have the effect of perpetuating segregation. Access to fair housing is a basic right that we help people defend in our work as civil rights attorneys, and the disparate impact rule is a crucial tool in rooting out discrimination that cannot be shown through overt statements or explicit actions.”
Philip Tegeler, Executive Director of the Poverty & Race Research Action Council (PRRAC): “It is appropriate that this lawsuit is being brought by a Connecticut plaintiff. Segregation in Connecticut housing and schools is maintained by a self-perpetuating web of supposedly neutral laws, policies and practices which have the effect of isolating low-income families of color and denying them access to opportunity. This is what the Fair Housing Act’s disparate impact standard was designed to address, and this is why the Trump Administration is trying to dismantle it.
Read the full lawsuit here.
About the Lawyers’ Committee for Civil Rights Under Law – The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure, through the rule of law, equal justice for all, particularly in the areas of voting rights, criminal justice, fair housing and community development, economic justice, educational opportunities, and hate crimes. For more information, please visit https://lawyerscommittee.org.