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September 10, 2019

Senator Doug Jones to HUD Secretary Carson: New Rule Would Make it “Nearly Impossible” to Bring Housing Discrimination Cases

Jones called for answers on HUD proposal that adds new hurdles to proving discrimination claims and weakens civil rights protections. “This is absolutely wrong, Mr. Secretary. This discrimination still exists in our country. We need to be affirmatively doing something about it.” –Senator Jones

WASHINGTON – Senator Doug Jones (D-Ala.) today questioned Housing and Urban Development (HUD) Secretary Ben Carson about his agency’s move to weaken its “disparate impact” rule, making it significantly more difficult to prove housing discrimination claims.

In the hearing, Senator Jones also cited HUD’s refusal to fully enforce fair housing laws, including Carson’s failure to proactively pursue secretary-initiated housing discrimination investigations during his tenure, something that recent administrations led by both parties did dozens of times over their terms in office. Highlighting the continued existence of housing discrimination today, Senator Jones also pointed to Census data showing African-American home ownership rates are down to just 40 percent, despite rising rates for other racial groups in recent years. Home-ownership among Black families is also at a lower rate today than when the Fair Housing Act of 1968 was passed.

In mid-August, HUD released a proposed update to its disparate impact standard, which is a legal theory that has guided fair housing law for more than 50 years. Disparate impact refers to practices or policies that have the effect of discrimination, even if the discrimination is not explicit or intended. The Supreme Court has recognized this form of bias as prohibited under the Fair Housing Act and has re-affirmed HUD’s power to enforce this standard.

Video of their exchange is available here and a transcript is below:

U.S. Senate Committee on Banking, Housing, and Urban Affairs
Hearing: “Housing Finance Reform: Next Steps”
Q&A Exchange with Secretary Ben Carson
September 10, 2019
Note: transcription edited for clarity

SENATOR JONES: “Mr. Secretary, while I appreciate the Administration’s efforts to move forward on housing reform, I do believe that overall these reforms are going to make it harder for working-class families to achieve home ownership and potentially put the dream of home ownership out of reach. [That’s] my view, open to discussions on that. But more importantly, while these reforms are being discussed today, I think we also have to talk about some other so-called reforms that the Administration is making to housing in America.

We haven’t seen you here for a few months, a year and a half as a matter of fact. I don’t know if we’ll get to see you again in any time in the future, so I want to ask you about a recent HUD proposal regarding rules that I believe are going to dramatically undermine the ability to enforce the Fair Housing Act. I have talked time and time again in this committee, and others, that housing discrimination in 2019 is persistent, but often – more often than not – subtle, not always direct. In years of legal doctrine, including the Supreme Court, made it clear that if policies and practices of businesses unintentionally discriminate against racial minorities or protected classes, it’s illegal, it’s called disparate impact, and the new rules, I think, make it nearly impossible to bring forward a discrimination case based on disparate impact.

Fair housing is only as fair as it can be enforced and if we can’t bring disparate impact housing [cases], by very nature, it ain’t fair. And I am concerned about this. Every single major housing rights and civil rights advocate agree that this rule is a major blow. Across the board, this rule introduces new hurdles for plaintiffs, including a new five part-test.

Mr. Secretary, I think we can all agree that housing discrimination still exists in this country. Black home ownership rates are down to just 40 percent. That is not just because of discrimination, I get that. We’re still pulling out of a recession. But the fact is, they’re down to 40 percent and Black homeownership is actually lower now than it was in 1968 when the Fair Housing Act was passed. I would also like to point out that you have the ability to bring Secretary-initiated complaints. President Obama did it an average of 10 times a year. President Bush did it an average of five times a year. But in the two and half years of the Trump Administration, we have zero that you have initiated. So a cynic would say that this new rule is in part to justify the inaction of HUD in bringing these complaints, when we know that they exist. So my question to you, sir – my question is simply: explain this to me. Explain why we need this rule [and] why it is important. Why do we need this when we know [housing discrimination] exists? Give me an opportunity, give us an opportunity, explain, why you are going to make it nearly impossible for people to bring disparate impact statements.”

Secretary Carson: “Let me just mention the fact that our record stands for itself. The fact of the matter is, we’ve initiated the Facebook complaint. We’ve gotten an agreement out of Los Angeles after almost 10 years of not taking care of disabled people’s housing needs. We’ve launched one against San Francisco for discriminating against low-income people for housing. And if you look at our list of suits that have been brought, I think they would compare favorably with anyone else. As far as disparate impact is concerned, we are trying to bring it into alignment with the Supreme Court ruling…”

JONES: “Oh come on, Mr. Secretary. I’m a lawyer. That dog’s just not going to hunt. It’s just not. The Supreme Court barely rolled back this. I’ve been practicing law for 40 years. What you’re doing is making it just damn near impossible for a plaintiff to bring a disparate impact statement. It is not in line with the Supreme Court. The Supreme Court has affirmed this time and time again.”

CARSON: “In fact, we’ve brought a complaint against San Francisco on disparate impact. You should go back and read it.”

JONES: “I’ll take a look. I’m happy to do that.”

CARSON: “But the fact of the matter is, if Congress for instance was to raise the minimum wage rate to $15, who would be disproportionately affected? Low skilled or unskilled workers primarily minorities in that area. That becomes a disparate impact against Congress. You begin to see what I’m talking about here.”

JONES: “No, I’m sorry.”

CARSON: “You can have disparate impact on almost anything, so what we want to do is clarify the way that it’s done that will save taxpayers a lot of money”

JONES: “My time is up, sir, and I may follow up for the record. Let me just say this – it’s been offered out for public comment and I want to make sure that my public comment is recorded right now. If I need to do it in writing with a black Sharpie, I’m happy to do that, but this is wrong. This is absolutely wrong, Mr. Secretary. This discrimination still exists in this country. We need to be affirmatively doing something about it and not making it more difficult.”

CARSON: “I’d love to discuss it with you.”

JONES: “Thank you, anytime. My door is wide open.”

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