October 17, 2019
SUBMITTED VIA REGULATIONS.GOV
Office of the General Counsel
Rules Docket Clerk
Department of Housing and Urban Development
451 Seventh Street, SW; Room 10276
Washington, DC 20410-0001
Re: HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, Docket No. FR-6111-P-02
Dear Secretary Carson and General Counsel Compton,
As social scientists from various disciplines with expertise in housing and segregation, we submit these comments in response to the Department of Housing and Urban Development (HUD)’s proposed rule revising the disparate impact standard. The doctrine of disparate impact has been and should continue to be a bedrock principle in the fight to ensure fair housing and access to neighborhoods. Disparate Impact is crucial to ensuring access to fair credit and homeownership opportunities for all communities. We strongly oppose HUD’s proposed changes to the disparate impact standard and urge you to uphold HUD’s current interpretation of the disparate impact rule for the reasons discussed below.
As social scientists, we know that the high levels of racial and economic segregation in many metropolitan areas have severe negative effects on adults and children. Recent research demonstrates conclusively that low-income neighborhoods affect physical and mental health, school performance, and labor market outcomes. The effects are particularly acute for children. Every year a young child spends in a high-poverty neighborhood has been shown to have long-term effects on educational attainment, labor force participation, employment, wages, and marital status.
Similarly, racial segregation has served to undermine the progress towards racial equality. In terms of housing, separate is not equal. African Americans living in metropolitan areas with lower levels of black/white residential segregation have higher employment rates, lower poverty rates, higher wages, lower infant mortality, and a smaller gap in mortality rates relative to non-Hispanic whites. Further the research shows that these gains for African Americans do not come at the expense of the majority group.
These social science findings are supported by a growing body of research within increasingly strong methodological designs that support causal inferences. Given that we know with certainty the severe and long-lasting impacts of segregation on our nation’s most disadvantaged groups and citizens, particularly children, we as a nation have a moral responsibility to reduce neighborhood disparities. Moreover, the costs and harmful effects of segregation fall on all residents in terms of unrealized human capital, slower productivity gains, and lagging economic growth, not to mention the increased direct costs of social services, health care, and incarceration. Reductions in segregation therefore are both equitable and efficient and move us closer to a society which lives up to the American ideal of equality of opportunity.
The current disparate impact rule is essential to the enforcement of the Fair Housing Act (FHA), which protects people from discrimination when they are getting a mortgage, buying a home, or renting an apartment. While the FHA makes it illegal to refuse or limit housing opportunities based on a person’s race, color, national origin, religion, sex, disability, or familial status, it is often impossible to know the exact reason someone is denied housing in any given transaction. However, harm to particular communities can often be demonstrated in patterns of housing outcomes. In such cases, a showing of disparate impact is essential to enforce protections guaranteed by the Fair Housing Act because it provides a way to prohibit policies that unnecessarily exclude people of color and other protected groups from housing options in neighborhoods of opportunity. The current disparate impact standard has been widely effective in addressing discriminatory practices in mortgage lending, rental housing, and property insurance, thereby making housing more available to all.
HUD’s Proposed Rule creates unrealistic evidentiary requirements and shifts the burden of proof from developers and policymakers onto those groups being harmed. These changes would destroy disparate impact liability and allow insurance companies, financial institutions, and other major corporations to engage in discriminatory practices, regardless of their motivation, without any consequences. It would leave communities of color and other groups without protection from unfair and discriminatory policies. HUD’s Proposed Rule goes against the very purpose of the Fair Housing Act to prohibit housing discrimination and instead gives companies more defenses to justify policies and practices with demonstrable discriminatory impact.
Collectively, we the undersigned strongly urge HUD not to go forward with the proposed rule. It goes against everything we have learned about the causes and consequences of segregation. HUD has a legal obligation to enforce the letter and spirit of the Fair Housing Act and the constitutional principle of equality under the law. Disparate impact, as currently defined, is an essential tool to achieving this mission and needs to be maintained if not strengthened. We urge you to withdraw the proposed changes to the disparate impact rule immediately.
Michael Borsellino, PhD Candidate, University of Michigan
Stephen Danleu, Associate Professor, Rutgers University-Camden
Prentiss Dantzler, Assistant Professor of Urban Studies, Georgia State University
Nathaniel Decker, PhD Candidate, UC Berkeley
Kathryn Epstein, Professor, Fielding Graduate University
George Galster, Hilberry Professor of Urban Affairs. emeritus, Wayne State University
Chris Hess, Postdoctoral Fellow, Rutgers Camden
Derek Hyra, Director, Metropolitan Policy Center
Dan Immergluck, Professor, Georgia State University
Paul Jargowsky, Professor of Public Policy, Rutgers University – Camden
Rahim Kurwa, Assistant Professor, University of Illinois at Chicago
Paul Lewis, Associate Professor, Arizona State University
George Lipsitz, Professor, University of California, Santa Barbara
Sarah Mawhorter, Postdoctoral Scholar, University of Southern California
Joan Maya Mazelis, Associate Professor of Sociology, Rutgers University-Camden
Mai Nguyen, Associate Professor, UNC-Chapel Hill
Myron Orfield, Earl R. Larson Professor of Civil Rights and Civil Liberties Law, University of Minnesota
Elora Raymond, Assistant Professor, Georgia Institute of Technology
Jason Reece, Assistant Professor of City & Regional Planning, The Ohio State University
Alejandra Reyes, Assistant Professor, University of California, Irvine
Jason Rivera, Assistant Professor, SUNY Buffalo State
Jacob Rugh, Associate Professor of Sociology, Brigham Young University
Thomas Sanchez, Professor, Virginia Tech
Rocio Sanchez-Moyano, PhD Candidate, University of California, Berkeley
Hilary Silver, Professor, George Washington University
Gregory Squires, Professor of Sociology and Public Policy & Public Administration, George Washington University
Rosie Tighe, Associate Professor, Levin College of Urban Affairs, Cleveland State University
Gwen Urey, Professor of Urban & Regional Planning, California State Polytechnic University
John Yinger, Professor of Economics and Public Administration, Syracuse University