Comments to HUD Re: FR-6111-P-02, HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard

Abstract

In key places, HUD’s 2019 proposed "Implementation of the Fair Housing Act’s Disparate Impact Standard" is at odds with express provisions of the Fair Housing Act (FHA) and goes so far as to invent new defenses to liability for housing discrimination and to place the burden of pleading and proving the nonexistence of some of these defenses on plaintiffs. In addition, the proposed rule addresses itself to matters beyond the FHA; specifically, to evidentiary and procedural issues as they may arise in cases brought under the FHA in federal or state courts. HUD provides no reasoned justification for these changes in its regulations, and by creating additional obstacles to achieving Congress’s purposes in enacting the FHA, HUD risks violating its statutory duty to further fair housing. These Comments, submitted by Professors Olatunde Johnson (Columbia Law School), Mark C. Niles (Hofstra University, Deane School of Law), Rigel C. Oliveri (University of Missouri School of Law), and Lauren E. Willis (Loyola Law School Los Angeles), explain why key parts of the proposed rule must not be adopted.

Keywords: housing discrimination, pleading burdens, evidentiary burdens, fair housing, burdens of proof, administrative law

JEL Classification: D18, D63, K23, K41, K42