NCSHA Submits Comments on HUD’s 2013 Final Rule Implementing the Fair Housing Act’s Disparate Impact Standard

On June 20, the Department of Housing and Urban Development (HUD) published an advanced notice of proposed rulemaking (proposed rule) inviting comments on HUD’s 2013 Implementation of the Fair Housing Act’s Discriminatory Effects Standard final rule (disparate impact rule) as it seeks to determine what changes to the rule, if any, may be needed to reflect the outcome of the 2015 Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

On August 20, the National Council of State Housing Agencies (NCSHA) submitted comments to HUD supporting the adoption of the Disparate Impact Rule. NCSHA included recommendations to HUD that they modify the Disparate Impact Rule to state that to be successful in establishing a prima facie case, plaintiffs must demonstrate a robust causality between the challenged policy or policies and the disparity, and for HUD to modify the Disparate Impact Rule to acknowledge that policies meet the legally sufficient justification so long as they are not artificial, arbitrary, and unnecessary barriers.