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[PULSE] HUD should back away from changes to disparate impact rule

This is not the time to change the rule

If there is one thing to be learned from the #BlackLivesMatter eruption this year, it is that race and racism remain as an alarming and polarizing social chasm that has never been fully addressed.

From the founding fathers who debated and yet protected slavery in the constitutional convention in order to gain the support of the majority to form the union, to today — we have yet to fully reconcile the reality that generations of disenfranchised Black Americans have been constrained from fully appreciating the benefits of this democracy compared to whites.

David Stevens
Guest Author

The mere fact that the Voting Rights Act was passed in my youth, a century after the Civil War ended, is a reflection of how slow this nation has been to address the discrimination created under its own doing centuries before.

For our industry, we have our own unique history of discrimination and oppression in providing equal housing opportunity to all. HUD was at the center of establishing what is now known as “redlining” in official policy. In fact, according to James Loewen in his 2006 book Sundown Towns, FHA publications implied that different races should not share neighborhoods, and repeatedly listed neighborhood characteristics like “inharmonious racial or nationality groups” alongside such noxious disseminates as “smoke, odors, and fog.”

In 2013, HUD issued a disparate impact rule that made clear that there would be liability for housing discrimination regardless as to whether there was intent to discriminate. The rule shifted the burden and elevated the obligation of fair housing compliance to those that issue credit and provide housing options. As NYU’s Furman Center explains, “segregation remains stubbornly persistent, often the result of policies that appear racially neutral but disproportionately impact groups protected under the FHA.”

About the proposed new rule put forth by HUD in 2019, the Furman Center writes, “Under the new rule, plaintiffs claiming disparate impact will be required to satisfy an onerous, and at times impossible to meet, pleading standard at the outset of litigation. The proposed rule exempts ‘single events’ from scrutiny because single events, it alleges, are materially different from broader policies and practices. It removes “perpetuation of segregation” from the list of discriminatory effects prohibited under the FHA. The rule also creates loopholes for landlords and lenders to defend discriminatory housing policies and algorithms, either as belonging to a third party and therefore out of scope, or as necessary to achieve ‘legitimate objectives.'”

Discrimination in housing is real and remains an extraordinary threat today as many in mortgage finance and real estate have said so well.

Bill Emerson, Vice Chairman of Quicken Loans states, “legitimate concerns have been raised about how the proposed rule would make it difficult to address some of the more challenging systemic issues of discrimination that the Fair Housing Act should be used to address,” in a letter calling for HUD to halt the implementation of the revised rule.

In a letter from Wells Fargo to HUD Secretary Carson they state, “(We) write with a straightforward but important request: that HUD defer issuance of its final disparate impact rule to allow for additional voices to be heard on an issue that too many in our country still face — housing discrimination in America.”

In response to NAR’s letter calling to withdraw the proposed rule, Lisa Rice of the National Fair Housing Alliance stated, “we greatly appreciate and applaud NAR’s leadership in not only encouraging HUD to withdraw its proposed disparate impact rule but in making your bold request public so that the housing and lending industries can clearly see the important step NAR is taking to advance justice in America.”

This is just a sampling of those calling for the stoppage of the proposed rule by HUD. Industry, consumer rights advocates, and legal scholars all see the same outcome with this proposed move from HUD. Placing undue burdens on those being discriminated against in rental and owned housing and housing finance is a reversal of course in this nation that has taken so long to make even small steps of progress to erase decades of abuse.

And in this year especially, when we see the stark divides of opportunity and access so plainly displayed throughout the nation, it’s the imperative of all who care about equality to simply call for what’s right. Whether it impacts the bottom line is irrelevant to the clarity of what needs to be stood for. HUD needs to withdraw its planned changes to the disparate impact rule.

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