23 states support restoration of federal fair housing protections weakened by Trump

New York State Attorney General Letitia James is leading a coalition of 23 states that have asked the U.S. Department of Housing and Urban Development (HUD) to restore federal fair housing protections that the Trump Administration had attempted to weaken and new Jersey officials are backing her up.

HUD’s proposal would reinstate the agency’s 2013 rule addressing when policies and practices violate the Fair Housing Act of 1968 due to their discriminatory effects or disparate impacts, even when they are neutral on their face and are not intended to discriminate.

“No one should be denied access to housing based on their race, national origin, sexual orientation, gender identity, religion or disability,” said . “We cannot tolerate discrimination in any form, and I urge HUD to take action that will ensure states have tools to better protect our residents from housing discrimination.”

HUD is proposing to reinstate the 2013 rule and revoke an unlawful 2020 replacement that had serious legal defects, failed to provide specific protections for people who were victims of discrimination, and made it more difficult for many valid legal claims to proceed.

The rule, also known as the Implementation of the Fair Housing Act’s Discriminatory Effects Standard, was originally established in 2013 under the Fair Housing Act. The rule protects individuals against facially neutral housing and lending practices that result in discrimination based on race, color, religion, national origin, sex, disability or familial status.

Last year, the Trump Administration changed the 2013 rule in ways that would have made it harder for plaintiffs alleging civil rights violations to win in court. But that change was temporarily blocked by a federal judge before it took effect, and the new HUD proposal would ensure that it does not become the law.

“The federal Fair Housing Act has been critical to advancing racial justice for more than fifty years,” said New Jersey Attorney General Andrew J. Bruck, one of the 23 who joined in support. “That’s because the law does not only prohibit intentional and explicit discrimination. It also prohibits practices and policies that perpetuate systemic housing inequity through their discriminatory effects. New Jersey welcomes the Biden-Harris Administration’s action to ensure that the law is able to fulfill its purpose.”

For decades, federal courts have recognized that the Fair Housing Act allows civil rights lawsuits based on the disparate impact that a challenged housing practice or policy has on a protected classification like race. The U.S. Supreme Court has described the disparate impact standard as “consistent with the [Fair Housing Act’s] central purpose.”

By allowing disparate impact liability, according to the Court, the law “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification” and “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

The standards for civil rights plaintiffs to prove a disparate impact have been developed by courts over time and were codified by HUD in its 2013 rule. But the rule change announced in 2020 would have imposed new, onerous requirements that would have made it harder for plaintiffs to show that a housing practice or procedure violates the Fair Housing Act.

New Jersey joined multistate coalitions opposed to weakening the 2013 rule in comments submitted to HUD in 2018 and 2019.

At the time, the coalition noted that weakening HUD’s disparate impact rule would make it more difficult to challenge discriminatory zoning ordinances, mortgage lending practices, criminal background check requirements and “English-only” policies, among other barriers to equal opportunity in housing. Many times, the states argued, these not-readily-observed forms of discrimination disproportionately harm minority residents and vulnerable populations, such as domestic violence victims.

In the comments announced today, supporting HUD’s plan to reinstate the 2013 rule, the coalition notes that the U.S. has a “shameful history of engaging in discrimination related to housing.” Even passage of the FHA in 1968, with its ban on overtly discriminatory housing polices, could not wipe away a “legacy of racism and segregation,” the letter observes.

Regardless of any changes in federal rules, New Jersey’s Law Against Discrimination (LAD) prohibits conduct that is intended to treat people differently based on their membership in a protected class (disparate treatment) as well as policies and practices that disproportionately affect those in a protected class, even when the policies and practices are neutral on their face and are not intended to discriminate (disparate impact). The following fact sheets from the Division on Civil Rights contain more information on the LAD’s protections against housing discrimination and bias-based harassment:

Anyone who believes their fair housing rights have been violated can file a complaint with DCR by visiting njcivilrights.gov or calling 1-833-NJDCR4U (833-653-2748).

The New York State Attorney General has led her colleagues in previous efforts to stop Trump Republicans from dismantling housing safeguards.

The new proposal would result in the eviction of thousands of families, including many children and lawful residents and citizens, who rely on housing assistance for their homes. If enacted, the Proposed Rule would harm the States, their residents, their local economies, and public health. The coalition was co-led by New York and the District of Columbia.

“If this rule is enacted, the Trump Administration will once again be tearing families apart, and this time, it won’t be at the border, but in our communities,” said Attorney General Letitia James. “Threatening to evict tens of thousands of children from their homes and put them on the streets is despicable and reverses decades of standard, well-reasoned federal policy. We will not sit idly by as this administration continues to launch these discriminatory attacks against immigrants and penalize those states that welcome them.”

For more than 30 years, laws governing public housing and HUD rules have prioritized family unity and the preservation of the family unit. Accordingly, the law has for decades allowed families with mixed immigration status to receive public housing subsidies, so long as ineligible family members did not themselves receive any financial subsidies.

The new proposal, announced in April 2019, would prohibit family members who are undocumented from residing in their homes. In many cases, the eligible family members are children, and these minors would not be able to live without their parents, resulting in the effective eviction of entire families.

As HUD’s own analysis concludes, the Proposed Rule would eliminate housing assistance for more than 108,000 people, including at least 55,000 children, many of whom are U.S. citizens or otherwise eligible for housing assistance. In New York alone, it is estimated that more than 11,400 people would be impacted, at least half of them being children.

In the comment letter submitted today, the attorneys general argue that this substantial loss of housing benefits will also cause significant economic and social harms to the States, including greater homelessness, reduced productivity, and a higher incidence of significant health problems.

States will have to bear significant administrative and social benefit costs if the rule goes into effect. Private housing providers will be far less likely to participate in subsidized housing programs, leaving States to find additional affordable housing options and to plan for increased rates of evictions and homelessness.

Joining New York Attorney General James and District of Columbia Attorney General Racine in submitting the comment letter are the Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

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