Housing Agency Blasted Over New Rigor for Disparate-Impact Claims

The standard to prove housing discrimination is getting tougher. A new lawsuit envisions callous results: families in the street and battered women getting evicted.

HARTFORD, Ct. (CN) — Contesting the new threshold for establishing proof of housing discrimination, two nonprofits argued Thursday that the change set to take effect next week will “set the clock back a half century in the fight for fair housing.”

The lawsuit filed Thursday in U.S. District Court seeks to invalidate a Housing and Urban Development rule that governs liability for practices that harm minorities, even where discriminatory intent did not exist. In legal terms, the doctrine is known as “disparate impact.”

Representatives for HUD did not respond to requests for comment, but J. Paul Compton Jr., the agency’s general counsel, noted last year that proving disparate impact when it comes to housing should take certain realities into account.

“There are a myriad of considerations that go into where housing should be placed,” Compton told reporters in 2019, as quoted by Propublica. “It is not the department’s role to broadly dictate to the thousands of communities across America [and question] local decisions that are made in good faith.”

HUD unveiled the rule four years after the Supreme Court concluded that disparate-impact claims needed to clear a high bar of “robust causality.”

With those words from Justice Anthony Kennedy in mind, a Texas federal judge ultimately dismissed a suit over tax credits that were said to have exacerbated racial segregation in Texas.

But the new challenge led by the groups Open Communities Alliance and Southcoast Fair Housing says that the very framework that the HUD now intends to gut has “helped dismantle systemic barriers to fair housing for decades.” 

“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,” Erin Boggs, executive director of Open Communities Alliance, said in a statement. “Now the Trump administration has cut off the legal avenue to remedy this wrong.”

While its co-plaintiff SouthCoast is based in New Bedford, Massachusetts, the group Open Communities Alliance hails from Hartford, Connecticut, where they brought the suit. The groups warn that implementation of the HUD rule on Monday will remove the guardrails against exclusionary zoning among a number of discriminatory practices.

Policies that punish tenants for criminal activity in their homes or for calling the police could allow landlords to evict survivors of domestic violence, or to deny housing to anyone with any type of prior criminal record. Alternatively, restrictive occupancy limits could be used to shut out families with children.

“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 for the challengers 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 Manhattan firm Cohen Milstein backs the complaint as well, as do the Poverty & Race Research Action Council and the American Civil Liberties Union.

“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,” Sandra Park, senior staff attorney with the ACLU Women’s Rights Project, said in a statement. “We will fight to restore these critical protections that ensure equal housing opportunities for all.”

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