President Biden Directs HUD to Review Recent Fair Housing Rules

On January 26, 2021, President Biden issued an “Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies” directing HUD to review two recent fair housing rules.

The first of these rules, “Preserving Community and Neighborhood Choice” rule, went into effect on August 7, 2020, and replaced HUD’s 2015 “Affirmatively Furthering Fair Housing” regulation. President Biden’s Memorandum directs HUD to “take all steps necessary to examine the effects” of the rule, including on how the August 2020 rule effected “HUD’s statutory duty to affirmatively further fair housing.”

The second rule addressed by President Biden’s Memorandum was HUD’s new “disparate impact” rule, which was scheduled to take effect on September 24, 2020. The rule made substantial changes to the requirements for proving certain types of housing discrimination cases. Critics argued that the 2020 disparate impact rule would eviscerate portions of the Fair Housing Act. After HUD issued the new rule, three lawsuits were filed against HUD and former Secretary Ben Carson challenging the regulation. In one of these cases, a federal district court in Massachusetts issued a nationwide preliminary injunction that prevented the rule from taking effect.

President Biden’s Memorandum directed HUD to “take all steps necessary to examine the effects” of the 2020 disparate impact rule “as soon as practicable” and to “take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements…HUD’s overall duty to administer the Act…including by preventing practices with an unjustified discriminatory effect.”