Other Group

Defend Civil Rights

Website:

www.defendcivilrights.org/

Formation:

2019

Type:

Non-Profit Political Advocacy Coalition

Defend Civil Rights (DCR) is a non-profit coalition created to oppose suggested clarifications to the 1968 Fair Housing Act by the Department of Housing and Urban Development (HUD) in the Trump administration. The coalition aims to oppose the change in what constitutes “burden of proof” in the use of “disparate impact” as cause for discrimination. [1]

As of January 2020, seven organizations have joined the alliance: American Civil Liberties Union, National Fair Housing Alliance, the Leadership Conference on Civil and Human Rights, NAACP Legal Defense and Educational Fund, Lawyers’ Committee for Civil Rights Under Law, Poverty and Race Research Action Council, and the Center for Responsible Lending. [2]

Disparate Impact

Defend Civil Rights exists to oppose changes proposed by the Trump administration Department of Housing and Urban Development to the standard used to assess whether housing discrimination has occurred under federal fair housing laws, specifically the 1968 Fair Housing Act. [3]

Principle

“Disparate impact” refers to a situation in which a party can be sued for discrimination if a policy or procedure can be shown to disproportionately affect a minority group, even if that outcome is incidental or unintended. [4]

In the 2015 case Texas Department of Housing and Community Affairs (TDH) v. The Inclusive Communities Project, the issue at hand was the allocation of federal tax dollars for the building of low-income housing. Inclusive Communities had previously filed successful lawsuits against TDH, alleging that these funds were only being allocated in poor, non-white neighborhoods, effectively keeping minorities out of wealthy white neighborhoods. Texas filed a countersuit, with the Supreme Court siding with Inclusive Communities in a 5-4 decision. In his majority opinion, Justice Anthony Kennedy cited the Fair Housing Act’s stipulation that “refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to a person because of race” is illegal. Kennedy clarified:

“The logic of Griggs…provides strong support for the conclusion that the [Fair Housing Act] encompasses disparate-impact claims. The results-oriented phrase ‘otherwise make unavailable’ refers to the consequences of an action rather than the actor’s intent.” [5]

He included further stipulations so as to limit the use of disparate impact claims, seeming to anticipate that they may be abused:

“Disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain the free-enterprise system…Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.” [6]

Pre-Trump Administration Rule

The current burden of proof, as summarized by HUD, requires three steps. First, a plaintiff must show that the practice or policy “caused, or predictably will cause, a discriminatory effect.” [7]

Second, the defendant must show the policy or practice is “necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.” [8]

Third, if the defendant has shown the practice to be necessary, the plaintiff must prove that the necessary interest of the defendant “could be served by another practice that has a less discriminatory effect.” This last step determines the outcome of the case.  As an added stipulation, that a practice is legal in and of itself cannot be used to excuse a claim of intentional discrimination. [9]

Proposed Changes

The new process as proposed by HUD on August 8, 2019 would require five steps, with a stricter burden of proof shifted to the plaintiff. In its guidelines, the new document heavily references the 2015 decision. [10]

First, the alleging party would have to prove that the policy or practice in question is “arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective.” Second, the alleging party must demonstrate a “robust causal link” between the practice in question and the impacted group. The alleging party will not be able to reference a statistical disparity alone, but must prove that the policy itself is “the actual cause of the disparity.” [11]

Third, the alleging party must demonstrate that the policy in question has an “adverse effect” on members of a particular protected or minority group. Fourth, the alleging party must prove that the policy has a “significant” adverse effect. Fifth, the alleging party must prove that the significant adverse effect is caused directly by the policy or procedure in question. [12]

Activism

The week of October 7-15, 2019 Defend Civil Rights hosted several events to rally opposition to the Trump administration’s proposed changes. Most were “comment writing parties,” aimed at flooding HUD with negative official regulatory comments in reference to the amendments. The stated goal was to reach 100,000 comments. On October 9, 2019 DCR hosted a panel discussion in conjunction with the Lawyers’ Committee for Civil Rights Under Law to discuss the impact of the new changes. [13]

References

  1. Defend Civil Rights. “Our Cause.” DCR Website. Undated. Accessed March 16, 2020.  http://www.defendcivilrights.org/our-cause ^
  2. Defend Civil Rights. “Who We Are.” DCR Website. Undated. Accessed March 16, 2020.  http://www.defendcivilrights.org/our-causehttps://www.defendcivilrights.org/who-we-are ^
  3. Defend Civil Rights. “Our Cause.” DCR Website. Undated. Accessed March 16, 2020.  http://www.defendcivilrights.org/our-cause ^
  4. North Carolina History Project. “Griggs v. Duke Power.” NorthCarolinaHistory.org Website. Undated. Accessed March 20, 2020.   https://northcarolinahistory.org/encyclopedia/griggs-v-duke-power/ ^
  5. Capps, Kriston. “What the Supreme Court’s ‘Disparte Impact’ Decision Means for the Future of Fair Housing.” Citylab Website. June 25, 2015. Accessed March 20, 2020. https://www.citylab.com/equity/2015/06/what-the-supreme-courts-disparate-impact-decision-means-for-the-future-of-fair-housing/396704/ ^
  6. Federal Register. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  7. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  8. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  9. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  10. Federal Register. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  11. Federal Register. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  12. Federal Register. “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” FederalRegister.gov Website. August 19, 2019. Accessed March 16, 2020. https://www.federalregister.gov/documents/2019/08/19/2019-17542/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard ^
  13. Defend Civil Rights. “Events.” DCR Website. Undated. Accessed March 16, 2020.http://www.defendcivilrights.org/events ^
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