February 13, 2026
Regulations Division,
Office of General Counsel
Department of Housing and Urban Development
451 7th Street SW, Room 10276
Washington, DC 20410-0500
Sent electronically via regulations.gov
Re: HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard (Docket No. FR-6540-P-01)
The Poverty & Race Research Action Council (PRRAC), Lawyers’ Committee for Civil Rights Under Law (LCCR), and the Washington Lawyers Committee for Civil Rights and Urban Affairs (WLC) strongly oppose the U.S. Department of Housing and Urban Development’s (“HUD”) Notice of Proposed Rulemaking (“Notice”) to remove HUD’s Fair Housing Act’s (FHA) discriminatory effects regulations, 24 C.F.R. § 100.500 (the “Disparate Impact Rule”), from the Code of Federal Regulations.
PRRAC is a national civil rights law and policy organization that promotes research-based advocacy strategies to address structural inequality and to dismantle systems that disadvantage low-income people of color. Our work is grounded in empirical research, legal analysis, and demonstrated solutions to ensure that federal housing programs advance equity, inclusion, and opportunity. From this perspective, rescinding the Disparate Impact Rule would undercut those goals and thereby prevent HUD from complying with its own civil rights obligations.
The Lawyers’ Committee is a nonpartisan, nonprofit civil rights organization founded in 1963 by the leaders of the American bar at the request of President John F. Kennedy to secure equal justice for all through the rule of law by targeting the inequities confronting Black Americans and other people of color. The Lawyers’ Committee uses legal advocacy to achieve racial justice and ensure that Black people and other people of color have the voice, opportunity, and power to make the promises of our democracy real. As part of this work, the Lawyers’ Committee has participated as counsel or amicus curiae in cases addressing race, ethnicity, and national origin discrimination in a wide range of subjects, including education, employment, health care and fair housing. The Lawyers’ Committee advocates for policies that foster inclusive, integrated communities that are free from discrimination and that provide access to opportunity for all their residents, including Black families that have been subjected to discriminatory housing policies. See, e.g., MHANY Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581 (2nd Cir., 2016).
The Washington Lawyers’ Committee is a nonpartisan, non-profit civil rights organization established in 1968 out of the Civil Rights Movement. In the over 50 years since its inception, the WLC has provided legal assistance to individuals and groups in a variety of civil rights matters. Through systemic litigation, we have challenged racial oppression in the areas of education, housing, employment, prisoners’ rights, policing, disability, and immigration. We remain committed to protecting and advancing civil rights for disadvantaged and underrepresented individuals and groups. Most relevant here, WLC has, for decades, successfully litigated fair housing cases under the FHA and local laws.
Our combined mission and history make our organizations uniquely qualified to assess and comment on the proposed rescission of HUD’s Disparate Impact rule. Disparate impact liability has been a vital part of civil rights and fair housing enforcement for decades, and this notice is a sharp departure from well-established law and agency practice. This rescission is arbitrary and capricious under the Administrative Procedure Act (APA), procedurally defective, contradicts Supreme Court precedent, and dishonors decades of civil rights progress.
The Proposed Rescission Is Arbitrary and Capricious in Violation of the Administrative Procedure Act
If finalized, the Notice would remove the text of HUD’s current Disparate Impact Rule from the Code of Federal Regulations, thus leaving a void with respect to what standard – if any – HUD might apply when investigating disparate impact claims in FHA administrative complaints and when assessing the validity of its grantees’ civil rights certifications. In the Notice, HUD incorrectly attempts to justify leaving this void on the grounds that it is the province of the courts rather than of administrative agencies to determine what standard applies. The Notice thus reverses decades of largely consistent regulatory interpretation of the FHA without providing a reasoned explanation for the change. The current Disparate Impact Rule, which was first promulgated in 2013 and then recodified in 2023, sought to provide consistency and clarity to disparate impact liability by codifying a three-part burden-shifting framework that was already in use by HUD, including in Administrative Law Judge determinations, and most federal courts.1 At the time of the 2013 rule, the 11 courts of appeals that had taken up the issue agreed that a facially neutral policy may violate the Fair Housing Act for its discriminatory effects.2 In the 2013 Final Rule, HUD describes “a small degree of variation” among the methodologies of determining discriminatory effects liability and sought to codify the standard used by HUD, administrative courts, and the majority of the federal circuits.3 The standard articulated in the 2013 Disparate Impact Rule has remained consistently in effect because a 2020 rule that purported to modify the standard was preliminary enjoined prior to its effective date and the resulting preliminary injunction was in place until HUD recodified the framework in 2023. Now, HUD is contradicting both precedent and itself by rescinding discriminatory effects liability.
1 See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2013) (codified at 24 C.F.R. § 100.500 (2024)); see also Reinstatement of HUD’s Discriminatory Effects Standard, 88 Fed. Reg. 19,450 (Mar. 31, 2023).
2 See, e.g., Graoch Assocs. #33, L.P. v. Louisville/Jefferson Cnty. Metro Human Relations Comm’n, 508 F.3d 366, 374-78 (6th Cir. 2007); Reinhart v. Lincoln Cnty., 482 F.3d 1225, 1229 (10th Cir. 2007); Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1286 (11th Cir. 2006); Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 740-41 (8th Cir. 2005); Langlois v. Abington Hous. Auth., 207 F.3d 43, 49-50 (1st Cir. 2000); Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1543 (11th Cir. 1994); Keith v. Volpe, 858 F.2d 467, 484 (9th Cir. 1988); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 937-38 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) (per curiam); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977); Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987-89 & n.3 (4th Cir. 1984); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290-91 (7th Cir. 1977); United States. v. City of Black Jack, 508 F.2d 1179, 1184-86 (8th Cir. 1974)
3 Id.; 2013 rule, supra Note 1 at 11460; See also, e.g.,HUD v. Twinbrook Village Apts., No. 02-00025600-0256-8, 2001 WL 1632533, at *17 (HUD ALJ Nov. 9, 2001) (“A violation of the [Act] may be premised on a theory of disparate impact.”); HUD v. Carlson, No. 08-91-0077-1, 1995 WL 365009 (HUD ALJ June 12, 1995) (“A policy or practice that is neutral on its face may be found to be violative of the Act if the record establishes a prima facie case that the policy or practice has a disparate impact on members of a protected class, and the Respondent cannot prove that the policy is justified by business necessity.”); HUD v. Ross, No. 01-92-0466-18, 1994 WL 326437, at *5 (HUD ALJ July 7, 1994) (“Absent a showing of business necessity, facially neutral policies which have a discriminatory impact on a protected class violate the Act.”); HUD v. Carter, No. 03-90-0058-1, 1992 WL 406520, at *5 (HUD ALJ May 1, 1992) (“The application of the discriminatory effects standard in cases under the Fair Housing Act is well established.”)
