On Wednesday, June 20, HUD will formally publish their Advanced Notice of Proposed Rulemaking (ANPR) titled, “Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” HUD is seeking comment on whether they should reopen the rule based on the Supreme Court’s ruling in the 2015 Texas Department of Housing and Community Affairs versus the Inclusive Communities Project, Inc (Inclusive Communities) and public feedback relating to HUD’s regulatory reform efforts. Comments are due 60 days after the ANPR is published on June 20th. HUD announced their plan to reexamine the Disparate Impact Final Rule in a press release on May 10th.
In the Inclusive Communities decision, the Supreme Court found that disparate impact claims, practices that cause discriminatory effects even if the practice was not motivated by discriminatory intent, are cognizable under the Fair Housing Act. HUD is currently reviewing what changes, if any, need to be made to the Disparate Impact Final Rule to reflect the Inclusive Communities decision.
HUD also received public feedback on the Disparate Impact Final Rule through their regulatory reform efforts. Feedback included both concerns that the rule created “uncertainty for commercial decision-making, as well as public policy making,” and support for the final rule.
In light of the Inclusive Communities decision and public feedback on the final rule, HUD is seeking public comment on whether the Disparate Impact Final Rule should be reopened. HUD includes a list of six questions they are particularly interested in receiving feedback on. Comments are due 60 days after the ANPR is published on June 20th.