I wanted to pass along a couple of federal fair housing policy notes. Over the past two weeks, the Trump Administration has publically indicated a desire to change two points of federal housing law:

  1. On May 10, 2018, the U.S. Department of Housing and Urban Development (“HUD”) issued a press release stating that it would seek public comment on the 2013 “disparate impact” regulation put in place by the Obama Administration. The “disparate impact” regulation was an attempt to codify a way to establish legal liability in a housing discrimination case. “Disparate impact” — defined as a facially neutral policy which has a discriminatory effect on a protected class — has been used in housing discrimination cases for many years, although the words “disparate impact” are not contained in the Fair Housing Act. On the third try, the U.S. Supreme Court, in a 5-4 decision, seemingly upheld (but arguably tightened) the use of the “disparate impact” theory in fair housing cases. That HUD seeks public comment on its regulation, I suspect, means the department is looking to alter or withdraw the rule.
  2. Next, on May 18, 2018, HUD Secretary Ben Carson moved to change another Obama-era housing policy. In 2015, HUD required more than 1,200 communities receiving federal housing money to use a new computer model to assess local segregation patterns and to develop a plan to address any apparent discrimination. Communities which failed to follow the model were put on notice that they were at risk of losing federal funds. In withdrawing the computer model, Secretary Carson stated the tool was “confusing, difficult to use, and frequently produced unacceptable assessments.” With the model withdrawn, HUD has directed communities to return to what they should have been doing – self-certifying that they have analyzed impediments to fair housing and, if needed, to prepare a plan to address any deficiencies. As a prelude to HUD’s action, a group of fair housing agencies sued the department over its suspension of the computer model.

A change in administrations typically produces policy modifications over time, particularly when the political party in power switches. Which is, of course, what happened in January 2017. There will be more to come in the coming weeks and months on these housing policy issues. I will continue to report back.

Just A Thought.