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

Abstract

The federal Fair Housing Act (FHA) has two principal goals. One express goal is to prevent housing discrimination against groups or persons due to their race, color, religion, sex, familial status, national origin or handicap. The second implicit goal is to promote the residential integration of the races in the United States. The implicit goal of the FHA to promote residential integration has been recognized by both the United States Supreme Court and by the Department of Housing and Urban Development (HUD), the federal agency that administers and enforces the FHA. In 2013, HUD issued a rule and regulation that established that a housing practice that perpetuates segregation is a discriminating effect that might constitute a violation of the FHA. In 2019, HUD proposed an amended rule and regulation that would delete perpetuation of segregation as a discriminatory effect that could be a basis for liability under the FHA. This article explores how the implied goal of the FHA to promote residential integration has been established in law. It identifies how HUD is now seeking to rely on the Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. The Inclusion Communities Project to undermine the goal of residential integration even though the Supreme Court decision strongly supports this goal. Finally, the article explains how HUD’s current effort to eliminate the perpetuation of segregation as a basis for FHA liability would weaken the FHA and would reverse the federal government’s longstanding commitment to promoting residential integration in the United States.