How the Trump Administration’s Plan to Limit Disparate Impact Liability Would Undermine the Fair Housing Act’s Goal of Promoting Residential Integration

In 2013, the Department of Housing and Urban Development (HUD) published its Disparate Impact Final Rule in which it sought to formalize its longstanding interpretation of disparate impact liability under the Fair Housing Act (FHA) by setting forth a three-part burden-shifting framework. HUD subsequently revisited its disparate impact standard following the 2015 Supreme Court ruling in Inclusive Communities and published a Proposed Rule on August 19, 2019. On September 24, 2020, HUD published a new Final Rule substantially altering the disparate impact standard laid out by the 2013 Rule. This Comment will analyze the similarities and differences between the disparate impact standard in the 2013 Rule and the standard set forth in the current, 2020 Rule. Additionally, given that the 2020 Rule was drafted in response to Inclusive Communities, this Comment will examine whether, and to what extent, the 2020 Rule is consistent with the Court’s ruling. Finally, this Comment will address the criticism leveled at the 2020 Rule by fair housing advocates and explore potential consequences of the new standard. Ultimately, this Comment will argue that, although the 2020 Rule finds some textual support in Inclusive Communities for several elements of its new framework, given the broad remedial purpose of the FHA, the core mission of HUD to eradicate housing discrimination, the potential, negative consequences of the new standard, and President Biden’s recent memorandum on housing discrimination, HUD should abandon the 2020 Rule and readopt the 2013 Rule.

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Conflict Preemption: A Remedy for the Disparate Impact of Crime-Free Nuisance Ordinances

University of Michigan Journal of Law Reform ◽

10.36646/mjlr.54.3.conflict ◽

2021 ◽

pp. 801

Author(s):

Meredith Joseph

Keyword(s):

Domestic Violence ◽

State Law ◽

Disparate Impact ◽

Fair Housing ◽

Legal Scholar ◽

Fair Housing Act ◽

The U.S

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various anti-discrimination protections presents many challenges. Less than five percent of all discrimination plaintiffs will achieve relief, and eighty-six percent of discrimination claims end in dismissals. Professor Katie Eyer, an anti-discrimination legal scholar, has advocated for increasing the use of “extra-discrimination remedies,” litigation-based approaches that are not rooted in anti-discrimination laws. This Note explores one potential extra-discrimination remedy that could be used to challenge crime-free nuisance ordinances: conflict preemption. Crime-free nuisance ordinances that are not tailored to state landlord-tenant laws’ grounds for eviction may be in conflict with, and preempted by, state law. This Note also recommends that fair housing advocates collaborate with landlord associations when challenging crime-free nuisance ordinances. Although the interests of landlords and tenants often conflict, both groups are harmed by municipalities that enact crime-free nuisance ordinances.

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Discrimination and Exclusion

The Psychology of Property Law ◽

10.18574/nyu/9781479835683.003.0007 ◽

2020 ◽

pp. 159-188

Author(s):

Stephanie M. Stern ◽

Daphna Lewinsohn-Zamir

Keyword(s):

Land Use ◽

Social Norms ◽

Psychology Research ◽

Unconscious Bias ◽

Disparate Impact ◽

Housing Policies ◽

Fair Housing ◽

The Us ◽

Fair Housing Act ◽

Perceived Social Norms

This chapter reconsiders the persistent problems of discrimination and exclusion in light of psychology research on prejudice and bias. It focuses on three important topics in housing and land use law. First, it examines whether disparate impact claims (i.e., discrimination claims against facially neutral housing policies that have discriminatory effects but lack evidence of discriminatory intent) have the potential to redress implicit, largely unconscious bias. Second, it describes how psychology research on the effect of perceived social norms on prejudice lends support to a controversial provision of the US Fair Housing Act, which prohibits discriminatory housing advertisements and statements. Third, the chapter discusses how psychology research can inform, and ameliorate, exclusion and discrimination in neighborhood and block associations charged with budgeting, zoning, or spending powers.

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