October 18, 2019
Submitted via Regulations.gov
Office of General Counsel, Rules Docket Clerk
Department of Housing and Urban Development
451 7th Street SW, Room 10276
Washington, DC 20410-0500
Re: Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, Docket No. FR-6111-P-02
Dear Office of General Counsel,
Thank you for the opportunity to submit these comments in opposition to the U.S. Department of Housing and Urban Development’s (HUD’s) proposed changes to the “Disparate Impact” rule. The Disability Rights Education and Defense Fund (DREDF) strongly opposes the proposed rule. DREDF urges the Department to withdraw the rule in its entirety.
DREDF is a unique alliance of adults with disabilities and parents of children with disabilities. We seek to advance the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development in the areas of: employment, housing, access to government services and benefits, transportation, architectural access, public accommodations, and education. Based in Berkeley, California, our vision is a just world where all people, with and without disabilities, live full and independent lives free of discrimination.
Americans have a shared interest in preserving fair housing protections. The Fair Housing Act prohibits intentional discriminatory acts as well as “neutral” policies that needlessly limit housing opportunities based on race, color, national origin, religion, sex, the presence of families with children, and people with disabilities. Fully realizing the promises of the Fair Housing Act for every person in the United States is central to HUD’s mission.
HUD’s Proposed Rule would impose drastic changes to the Fair Housing Act’s “disparate impact” protections. These changes would make it much more difficult to use HUD’s Disparate Impact rule to challenge policies and practices that disproportionately harm people with disabilities.
People with Disabilities Need Strong Fair Housing Protections
People with disabilities face particular barriers in securing housing. First, people with disabilities live in poverty at more than twice the rate of people without disabilities, making the scarcity of affordable housing an acute problem for them.[1] More than 65 percent of the 17.9 million working-age adults with disabilities participate in at least one safety net or income support program.[2] Further, for many years, people with disabilities have been employed at less than half the rates of people without disabilities. In 2017, the National Council on Disability reported that only 32 percent of working-age people with disabilities are employed compared with 73 percent of those without disabilities.[3]
As described in Priced Out: The Housing Crisis for People with Disabilities:
In 2016, millions of adults with disabilities living solely on Supplemental Security Income (SSI) found that renting even a modest unit in their community would require nearly all of their monthly income. In hundreds of higher-cost housing markets, the average rent for such basic units is actually much greater than the entirety of an SSI monthly payment.[4]
As a result, “non-elderly adults with significant disabilities in our nation are often forced into homelessness or segregated, restrictive, and costly institutional settings such as psychiatric hospitals, adult care homes, nursing homes, or jails.”[5]
Compounding this concern, people with many types of disabilities, including people with mobility impairments, people who are blind, and people who are deaf or hard of hearing, face additional barriers securing affordable housing that is also accessible. In addition, California has eight of the ten highest rental cost metropolitan counties in the country. The San Francisco Bay Area is experiencing an unprecedented lack of affordable, accessible housing, putting people with disabilities, and all those who would be impacted by the proposed rule, at greater risk for homelessness.
These concerns make it critical to ensure that protections against discrimination in housing are not weakened. As it is, complaints of disability discrimination have comprised the largest percentage of housing discrimination complaints received by both public and private fair housing enforcement organizations since the early 2000’s.[6] The inability to preserve housing will not only put people with disabilities at risk of homelessness and institutionalization, but will likely increase costs to state and local governments, which will incur the costs of institutionalization, shelter placements, and emergency department visits.
Disparate Impact Claims Provide Important Protections for People with Disabilities
HUD’s new proposed rule would risk the Department’s failing to meet its critical obligation to achieve the Fair Housing Act’s “central purpose . . . to eradicate discriminatory practices within a sector of our Nation’s economy.”[7] HUD’s current Disparate Impact rule is a necessary tool in the ongoing effort to achieve open housing markets, free of discrimination, and to eliminate housing discrimination and illegal segregation. It has provided protection for:
- people with disabilities excluded from public and private housing on the ground that they used supportive services and thus were deemed unable to “live independently”
- people with disabilities denied housing based on a requirement that tenants have a job rather than having disability or other benefits
- people with disabilities denied housing because they rely on housing subsidies
- people with disabilities denied permission to live in their own homes, purchased or leased by a service provider, due to the application of zoning ordinances
- people with disabilities denied housing due to minimum income requirements
- people with disabilities denied housing based on their race, color, national origin, sex, or LGBTQ status
HUD’s existing rule should not be revised. Instead, HUD must focus on vigorous enforcement of the rule to remove unfair and unnecessary barriers to housing.
Safe, Accessible, Affordable Housing is Needed for Students to Learn and Thrive
One-third of DREDF’s work aims to protect and advance the rights of students with disabilities, including immigrant students and children in mixed-status families. We seek to ensure disabled students are able to live in the community, receive a free and appropriate public education, and attend integrated schools. DREDF’s Parent Training and Information center staff routinely assist parents and students of immigrant and low-income families to obtain access to a free and appropriate public education. We believe firmly that in order for students to fully engage in, and receive the benefits of, an education, they must also be provided safe, secure, accessible and affordable housing with their families.
HUD’s Proposed Rule Would Impede State and Local Governments from Complying with the ADA’s Integration Mandate and Impose New Costs on Them
The availability of rental subsidies has been critical to ensure the availability of affordable and accessible housing for people with disabilities. Indeed, such subsidies are a key aspect of implementing the Americans with Disabilities Act’s integration mandate and the Supreme Court’s Olmstead decision. The ADA requires public entities to administer services to people with disabilities in the most integrated setting appropriate. Supported housing units scattered in buildings throughout the community are necessary to implement the ADA’s integration mandate. To make this type of supported housing available, state and local governments typically rely on rental subsidies that help support people with disabilities to live in their own apartments or homes, secured through the ordinary housing market.
A rule that would effectively eradicate Disparate Impact protections against denying housing to people who use rental subsidies could interfere with public entities’ efforts to comply with the ADA’s integration mandate. If state or local governments have difficulty securing housing units for people with disabilities on the open market, they may be forced to rely on capital construction in order to avoid needless institutionalization—a costly proposition in either event.
Conclusion
The Proposed Rule operates to destroy Disparate Impact liability. It is in direct contradiction to HUD’s mission, decades of law, and the Supreme Court’s recent decision in Inclusive Communities. DREDF urges HUD to withdraw the rule in its entirety and reaffirm civil rights advances and access to housing. For more information about DREDF’s opposition to the proposed changes please contact Carol Tyson, Government Affairs Liaison, at ctyson@dredf.org.
Sincerely yours,
Susan Henderson
Executive Director
[1] National Council on Disability, A Progress Report (Oct. 26, 2017), at 21,
https://ncd.gov/sites/default/files/NCD_A%20Progress%20Report_508.pdf.
[2] Id. at 22.
[3] Id. at 32.
[4] Technical Assistance Collaborative, Priced Out in the United States (Dec. 2017),
http://www.tacinc.org/knowledge-resources/priced-out-v2/.
[5] Technical Assistance Collaborative and Consortium for Citizens with Disabilities Housing Task Force, Priced Out: The Housing Crisis for People with Disabilities (Dec. 2017), at 8,
http://www.tacinc.org/media/59493/priced-out-in-2016.pdf.
[6] National Fair Housing Alliance, The Case for Fair Housing, 2017 Fair Housing Trends Report (Apr. 2017), at 27,
https://nationalfairhousing.org/wp-content/uploads/2017/04/TRENDS-REPORT-4-19-17-FINAL-2.pdf.
[7] Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2511 (2015), available at:
https://casetext.com/case/texas-dept-of-housing-and-community-affairs-v-inclusive-communities-project-inc.