Banking and Finance Law Daily Biden administration acts to restore Fair Housing rules
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Wednesday, April 14, 2021

Biden administration acts to restore Fair Housing rules

By Nicole D. Prysby, J.D.

HUD released a proposed rule to reinstate the 2013 Discriminatory Effects Rule as well as an interim rule restoring the 2015 Affirmatively Furthering Fair Housing Rule.

The Department of Housing and Urban Affairs (HUD) has announced two rules: a proposed rule reinstating the 2013 Discriminatory Effects Rule and an interim rule reinstating the 2015 Affirmatively Furthering Fair Housing Rule. In 2020, HUD revised the Fair Housing Act’s disparate impact rule and raised the bar for establishing disparate impact claims. Also in 2020, HUD finalized a rule effectively ending 2015 efforts at fair housing, broadly referred to as "affirmatively furthering fair housing," or AFFH. In January 2021, the Biden administration reasserted the federal government’s commitment to fair housing. The Center for Responsible Lending (CRL) and the National Community Reinvestment Coalition (NCRC) issued press releases supporting HUD’s efforts on April 12, 2021, to reinstate fair housing rules.

In 2020, HUD revised the disparate impact rule under the Fair Housing Act, which provides a framework for establishing legal liability for facially neutral practices that have unintended discriminatory effects on classes of persons protected under the FHA. The final rule raised the bar for establishing disparate impact claims (see Banking and Finance Law Daily, Sept. 9, 2020). Also in 2020, HUD rolled back the AFFH rule (see Banking and Finance Law Daily, Jul, 24, 2020). Further, in January 2021, the Biden administration released a Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, which reasserted the federal government’s commitment to fair housing (see Banking and Finance Law Daily, Jan. 29, 2021). In addition to the proposed rule reinstating the Discriminatory Effects Rule, HUD issued an interim rule reinstating portions of the AFFH provisions. The HUD rules have been accepted for review by the Office of Management and Budget.

CRL issued a press release in support of the two rules. "President Biden and Secretary Fudge are keeping their promise to restore these crucial fair housing rules," said CRL Executive Vice President Nikitra Bailey. "Systemic discrimination continues to limit housing opportunity for Black and brown communities and stunts our country’s economic growth. Reinstating the original Disparate Impact and AFFH rules will move us closer to achieving a more just society where everyone has access to opportunity. Moreover, given the large amounts of federal funding subject to the AFFH requirement being distributed, there is an urgency to restore the rule’s obligations on jurisdictions."

NCRC also issued a statement supporting HUD’s efforts to reinstate fair housing rules. Jesse Van Tol, NCRC CEO, said: "Restoring portions of the 2015 AFFH rule could not have come soon enough, as billions of dollars continue to flow into communities across the country from the last stimulus. Now is the time to ensure that this public investment is tied to the removal of widely recognized barriers to fair housing." CEO Van Tol went on to say, "These actions must also be part of a broad, multi-faceted federal strategy to close racial homeownership gaps, including the Black homeownership gap which is now at its widest point since the passage of the Fair Housing Act in 1968."

Companies: Center for Responsible Lending; National Community Reinvestment Coalition

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