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Joint Comment Letter re Disparate Impact Letter
Ladies and Gentlemen:
This comment is submitted by the American Bankers Association (ABA),1 the Consumer Bankers Association (CBA),2 and the Housing Policy Council3 (HPC) in response to the August 19, 2019 proposed rule4 of the U.S. Department of Housing and Urban Development (the Department or HUD). The Proposed Rule “follows a June 20, 2018, advance notice of proposed rulemaking, in which HUD solicited comments on the disparate impact standard set forth in HUD’s 2013 final rule.” The Department “proposes to amend HUD’s interpretation of the Fair Housing Act’s disparate impact standard to better reflect the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.”
ABA, the CBA, and the HPC vigorously support both the letter and spirit of the Fair Housing Act, and the associations and their members devote substantial resources on an ongoing basis to ensure that credit decisions for all loan applicants are made without regard to race or other prohibited bases. The issues faced by the Department in promulgating rules and enforcing the Fair Housing Act are complex, and this comment is intended to help ensure that HUD codifies a standard that is fully consistent with Supreme Court precedent and effectuates the Fair Housing Act’s requirements and goals in a clear and transparent manner.
The Supreme Court has recognized disparate impact liability under the Fair Housing Act as the law of the land, and we believe that application of the proper standard of disparate impact advances the Act’s objectives and purposes by providing a mechanism to further the goal of removing artificial, arbitrary, and unnecessary barriers to fair housing. At the same time, HUD’s reopening and proposing amendments to the 2013 Rule properly recognizes that the disparate impact standard must accurately reflect Supreme Court precedent and provide necessary guidance regarding the application of the law.
As described in detail below, we appreciate HUD’s analysis of the issues and support the amendments in HUD’s Proposed Rule, with some suggested modifications.