State Attorneys General Urge HUD to Keep Rule Against Housing Discrimination

Attorneys general in 16 states and the District of Columbia submitted comments to the U.S. Department of Housing and Urban Development, urging that the agency make no changes to an administrative rule that protects individuals from housing discrimination.

“The rule strikes the proper balance between promoting an integrated society and protecting housing providers from unmeritorious discrimination claims,” the statement said.

The attorneys general, all democrats, cited lawsuits alleging discrimination by Wells Fargo and Countrywide Financial Corporation. Both companies settled and agreed to compensate the victims, but Wells Fargo denied any wrongdoing. Bank of America purchased Countrywide in 2008 and said that it discontinued Countrywide’s allegedly discriminatory practices.

In those cases, prosecutors used a standard known as “disparate impact” to prove discrimination, arguing that even though there was no “direct proof of overt bias,” there were “statistically significant disparities” that could not be explained away by race-neutral business decisions. The standard allows lenders, landlords and other housing providers to be held liable if their actions produce a discriminatory effect, regardless of their intent.

Under the Obama administration, the Department of Housing and Urban Development began using the disparate impact standard to enforce the Fair Housing Act. A 2015 Supreme Court decision agreed that intent was not required to prove discrimination.

In May, under the Trump administration, the housing agency asked for a second opinion. Secretary Ben Carson announced it would seek public comment to assess if the disparate impact standard was being correctly applied in accordance to the Supreme Court ruling.

In response, the American Bankers Association argued that the rule should be amended to include clear and specific definitions of disparate impact.

“ABA and the SBAs (state bankers associations) have significant concerns that the rule adopts standards that are inconsistent with Supreme Court precedent, fails to provide necessary guidance, and is therefore outdated and ineffective,” the American Bankers Association wrote.

The association would like the rule to protect lenders from claims based only on statistics. Under the Supreme Court decision, anyone bringing a disparate impact lawsuit needs to also identify policies that led to a statistical disparity.

The attorneys general cited Reveal’s work on modern-day redlining. The investigation found that people of color were more likely to be denied conventional mortgages in 61 metro areas across the country, even when they made the same amount of money, took on the same amount of debt, and were looking to live in a similar neighborhood as their white counterparts.

Reveal centered its investigation in Philadelphia because it was one of the largest metros with a high likelihood of denial for black applicants. The investigation prompted Pennsylvania Attorney General Josh Shapiro to look into issues of redlining. He is one of the 17 attorneys generals who voiced their opposition to making changes in the disparate impact rule.

“If HUD changes its rule on disparate impact, that could open the door for lenders to further discriminate against borrowers,” Shapiro said in a statement. “Redlining and other forms of housing discrimination are wrong, and they harm individuals seeking mortgages or housing. These practices hold our cities and neighborhoods back – that’s why I am working to end them and protect consumers.”

Of the attorneys general who submitted comments to the Department of Housing and Urban Development, Reveal found lending disparities in eight of their states, such as North Carolina, and the District of Columbia.

In the nation’s capital, black, Latino, Asian and Native American applicants were all more likely to be denied. Black applicants in Greenville, North Carolina, were more than five times as likely to be denied a mortgage, one of the highest disparities in the country, according to Reveal’s analysis.