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Federal Housing Agency Seeks To Raise The Bar In Discrimination Cases

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Ben Carson

In this Tuesday, Sept. 10, 2019 file photo, Housing and Urban Development Secretary Ben Carson, right, speaks at a Senate Banking Committee hearing. A proposed HUD rule would raise the burden of proof on complainants in housing discrimination cases.

Andrew Harnik, File

Chicago-area fair housing advocates are pushing back against a proposed Trump administration rule that they say will make it harder to prove discrimination.

Disparate impact is a legal theory that recognizes housing discrimination against race, gender or disability can be unintentional. And often that’s the case with race-neutral policies — they can perpetuate segregation and racism.

The Fair Housing Act recognizes disparate impact. The U.S. Supreme Court upheld it. Now the U.S. Department of Housing and Urban Development (HUD) wants to replace an Obama-era rule that codified disparate impact when dealing with housing discrimination cases.

HUD argues disparate impact is nebulous, and the proposed rule puts in a five-step process raising the burden of proof on the complaining party.

“I would argue it’s impossible to prove discrimination,” said John Petruszak of the South Suburban Housing Center.

HUD proposed the rule in August. There’s no timeline for when the rule would be implemented, and Congress doesn’t have to approve it.

The public comment period ends Friday. Local fair housing organizations plan to flood the federal housing agency with comments.

“HUD is required to look at and respond to all of the comments, which is why we’re putting an emphasis that comments be individualized or personalized as much as possible. We are admittedly trying to slow the process down,” said Bob Palmer of Housing Action Illinois.

Advocates say it’s hard to locally challenge segregation without disparate impact, which has been key in a number of Chicago-area housing cases.

Disparate impact was used in a 2003 case against the Chicago Housing Authority about how the Section 8 voucher program led to families moving to racially and economically segregated communities. Revisions were made to the housing program. Last year, a complaint was filed against the City of Chicago over what’s known as “aldermanic prerogative,” a long-held city council practice virtually giving aldermen complete control over development in their wards. Housing advocates have charged that aldermen used the practice frequently to block affordable housing.

Kate Walz, an attorney with the Shriver Center on Poverty Law, said these are classic examples of the importance of using disparate impact theory where you don’t always have intent.

“Oftentimes, the policy itself is what’s causing such a systems imbalance and the structural racism you’re trying to get at,” Walz said.

In the 1970s, the U.S. Department of Justice sued Donald Trump and his father for racial housing discrimination. It fell under intentional discrimination, not disparate impact.

“The two are connected,” Walz said. “What is often lost in the theory about disparate impact is that those who don’t like it will say this is gotcha litigation: [they will say] ‘I had no idea that this was happening and I shouldn’t be held responsible for an innocent mistake.’”

But Walz said sometimes intentionality comes out during discovery after a complaint has been filed. The new HUD rule would require practically a signed confession from the defendant, she said.

And advocates said there’s a wider attack on civil rights. If this rule goes through, they said it’ll make it easier to dismantle other federal anti-discrimination laws.

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