The Department of Housing and Urban Development (HUD) has proposed a rule that would make it much harder to prove the existence of housing discrimination. Equal access to housing is an essential part of the American Dream. Fair housing opportunity opens the door to better jobs, education, and quality of life for people striving to lift up their families. Persons who have been denied fair housing opportunities should not also be denied a fair shake in court.
Although discriminatory housing has existed in our country for many decades, the National Housing Act of 1934 saw the implementation of a pernicious practice called “redlining” that essentially excluded minority groups from better housing. Redlined areas were demarked on residential maps based largely upon racial makeup and those in redlined areas had difficulty obtaining bank loans to purchase housing, especially in more desirable neighborhoods outside of the redlines.
The Fair Housing Act was passed with bipartisan support in 1968 to prohibit redlining and other discriminatory housing practices. The legislation has been supported and strengthened over the years by both parties. It has been a powerful tool for providing equal access to decent housing for individuals with limited economic or political clout.
Discriminatory practices are not particularly easy to prove in court, however. In the civil rights arena, we have developed two avenues for seeking justice from discriminatory acts. Where a person directly suffers discrimination, it is called a disparate treatment case. The case is generally decided upon evidence of what transpired between the parties.
There are more subtle forms of discrimination that are much harder to prove. For instance, redlining did not appear to be discriminatory on its face but the purpose and effect of the practice was to discriminate against certain groups, particularly African Americans. Where a federally-protected group is adversely impacted by a particular practice, it is called a disparate impact case. Direct evidence of discriminatory intent is rarely available in these cases because the designers of the practice are not likely to testify against themselves.
Federal courts have long accepted statistical proof to establish disparate impact cases of discrimination in employment, public accommodations, housing and other protected activities–evidence that a policy or practice has a particular adverse impact on the protected rights of certain groups. Congress has long acquiesced in the means adopted and employed by the federal courts and administrative agencies in handling these tough cases. A rule specifically implementing these disparate impact proof standards for housing cases was adopted by HUD in 2013.
Now, just a few years later, HUD is proposing to hamstring the ability of those suffering housing discrimination to prove up their case under the 2013 disparate impact rule. The rollback of the existing rule will make it very difficult for those denied equal housing opportunity to have a fair shake in court. The proposed HUD rule is not in keeping with the intent expressed by Congress in the Fair Housing Act of 1968, nor is it compatible with the enforcement means available for other federally-protected rights.
HUD has shown little need for an about face on protecting the rights of all Americans to equal access to decent housing. Without a clear demonstration of strong public policy considerations that support a change of the existing rule, HUD should leave it be. This appears to be little more than kowtowing to interest groups that would like to rewrite the housing rules to their advantage.