While impeachment drowns out other news, the Trump Administration quietly continues its assault on long-standing, fundamental, civil-rights protections. Recently, the Department of Housing and Urban Development proposed a rule that would eviscerate the established standard governing enforcement of the Fair Housing Act.
Public opposition could still halt adoption of the proposal or at least persuade HUD to scale it back. You can help by spreading the word. Talk about the proposal and why it’s wrong in your social media posts. Write a letter to the editor of your newspaper. Email your Congressperson. Write to HUD. Urge your friends to do the same. Contact information and suggested text are included below.
Also, plan now how you are going to help Democrats win next November. While the nation has made progress since enactment of civil-rights legislation in the 1960’s, we have much work left to do to make the United States a place of equal opportunity for all. We must replace the present administration with one that will strengthen rather than undermine our civil-rights laws and help build a fairer society.
The Fair Housing Act bans racial and other discrimination in many activities affecting housing. For several decades, both HUD and the federal courts have read the Act to ban conduct that has a discriminatory effect even if there is no proof that it was undertaken with an intent to discriminate. In 2013, the Obama administration adopted a HUD rule confirming this “disparate impact” principle and standardizing its application.
The disparate impact standard has helped halt some far-reaching discriminatory practices. In 2011, Countrywide Financial Corporation reached a $135 million settlement with the Justice Department for allowing its brokers to charge 200,000 black and Latino borrowers higher interest rates than similarly qualified white borrowers. In 2012, Wells Fargo reached a $175 million settlement with the Justice Department for placing 300,000 black and Latino borrowers in subprime loanseven if they qualified for prime rates, or charging them higher fees, thereby forcing these borrowers to pay higher costs than similarly situated white borrowers. Discriminatory housing practices very much remain a problem today.
HUD’s proposal would make housing discrimination cases significantly and unreasonably more difficult to win. The proposed rule would reverse the no-showing-of-intent standard and instead require plaintiffs to prove a “robust causal link between the practice and the disparate impact.” Causation is hard to prove, especially if landlords and lenders are savvy enough to be careful about what they say and write down. Requiring proof that a practice with clear discriminatory effects was motivated by discriminatory intent would make many discrimination cases impossible to win. It would allow discriminatory housing practices to flourish.
HUD’s proposal would also require plaintiffs to show that the challenged practice is “arbitrary, artificial and unnecessary.” In practice, this could mean that if any legitimate purpose was served by a practice, it would be legally acceptable, even if the same purpose could be achieved by another practice having no discriminatory effects. The proposed rule would undermine fair housing enforcement in a number of other ways as well.
Secretary of Housing and Urban Development Ben Carson has published a defense of the proposed rule. It flatly misrepresents current law. Moreover, rather than defending the ways his proposal would change the law, he fails to acknowledge what the proposal actually would do.
Leading housing and civil-rights organizations such as the NAACP, along with former Justice Department officials, state Attorneys General, Members of Congress, and other public and private organizations have filed comments strongly opposing the proposed rule. HUD is likely to adopt the rule once it has publicly responded to these comments. While the rule can then be challenged in court, it reflects policy choices that courts may be reluctant to overturn.
Please raise your voice against this attack on fair housing. Here’s a proposed script for using to write to your elected representatives or to your local newspaper, and for use in discussions with others:
HUD’s proposal to change the disparate impact standard for fair-housing complaints would severely weaken fair-housing rights. Housing discrimination remains a serious problem in our country. Moreover, because of serious shortages of affordable housing, people victimized by housing discrimination have limited options for alternative housing. Instead of weakening our commitment to civil rights, we should be strengthening it. The existing disparate impact standard has worked well and should be left in place.
Contact Representative Don Beyer at https://beyer.house.gov/
Contact Senator Mark Warner at https://www.warner.senate.gov/public/
Contact Senator Tim Kaine at https://www.kaine.senate.gov/
Write to the Washington Post at https://www.washingtonpost.com/opinions/letter-to-the-editor/
Contact Dr. Benjamin S. Carson, Secretary of the Department of Housing and Urban Development at 451 7th St., S.W., Washington, D.C. 20410