NCSHA Submits Comments to HUD on Fair Housing Proposed Rule

In comments submitted January 17, NCSHA asked HUD to postpone making changes in its fair housing regulations until the U.S. Supreme Court decides a key fair housing case it is scheduled to consider this February. NCSHA submitted the comments in response to a proposed rule HUD published last November for public comment.

HUD’s proposed rule would establish standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act and clarify which party bears the burden of proof for establishing if a practice has a discriminatory effect, whether there is a compelling legal justification for the practice, and whether an alternative practice could accomplish the same goals as the challenged practice in a less discriminatory way.

NCSHA’s comments reiterate the organization’s commitment to helping HFAs administer programs in a nondiscriminatory manner to create greater housing choice and opportunity. NCSHA’s letter also expresses concern that the proposed rule’s burden-shifting framework could have unintended and serious consequences on HFA and other stakeholders’ affordable housing efforts.

NCSHA also urged HUD to postpone its rulemaking until the U.S. Supreme Court decides Magner v. Gallagher, a case that is currently pending before the Court. The issue in that case concerns whether the Fair Housing Act does, in fact, allow disparate impact (or “discriminatory effect”) claims, and if it does, which burden-shifting test should be used to analyze such claims.

HUD received numerous comments on the proposed rule, which are available here.