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I don't write here very often, but sometimes an issue comes up that is important enough to share with this group.

By way of background, the Fair Housing Act is a 1968 law that (as amended) prohibits housing discrimination based on race, color, religion, national origin, sex, disability and familial status (the presence of children under 18 in a household).  This is a bit of an oversimplification, but under the Act, one can prove discrimination under a theory of disparate treatment - i.e., that landlord INTENTIONALLY failed to rent to me because I have a disability, am a woman, am African-American, etc.  Though there are several ways to prove it, that THEORY is pretty non-controversial.

What's slightly more controversial is a theory called "disparate impact."  Disparate impact refers to a policy or procedure that is neutral on its face (in other words, it doesn't explicitly prohibit someone who's black or disabled from getting housing) but in practice comes down harder on some than others.  The beauty of disparate impact is that you don't have to prove intent (although it's often there); all you have to show is that the policy has the impact.  If the housing provider can't justify the policy and show that it's the least discriminatory way to serve its purpose, he loses.

Examples of disparate impact:

-- A mobile home park charges rent by the head rather than by the unit, which makes it more expensive for families with children to rent.  The landlord can't justify the extra cost.  The policy is likely illegal.

-- An apartment complex has a requirement that only people with full-time jobs can live there.  That would make the housing unavailable to people with disabilities who could pay the rent even though they are unable to work.

-- An apartment complex changes hands and suddenly decides to stop accepting Section 8 vouchers.  That policy would have a disparate impact on people of color, who use Section 8 in higher percentages than whites.

-- An insurance company decides that in some lower-income neighborhoods it will provide only "market value" house coverage instead of replacement, because the property values are lowers than the replacement cost.  Those lower-income neighborhoods with depressed property values are more likely to be integrated or predominantly composed of people of color.

EVERY JUDICIAL CIRCUIT IN THE COUNTRY recognizes disparate impact as a viable theory of liability under the Fair Housing Act.  Unfortunately, there's a case out of the Third Circuit that may be heard by the Supreme Court, currently composed by a majority of justices that would like nothing more than to get rid of the disparate impact theory.  (If you're interested, it's Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375.)

The U.S. Department of Housing and Urban Development has long been in the process of developing a regulation on disparate impact, and that regulation would basically say, "HUD, the federal agency that enforces the Fair Housing Act, believes that disparate impact is a viable theory of liability.  Here's how you prove it, and here's how the housing provider can rebut it."

A regulation issued right now would be VERY helpful in the Mt. Holly case and going forward, because Supreme Court jurisprudence generally favors deference ("Chevron deference," for you law geeks) to agency interpretations of federal statutes, as long as the interpretation is not completely off the wall.  Even Scalia likes Chevron deference.

So a reg from HUD right now would go a long way toward preserving the disparate impact theory.  HUD received a couple hundred comments on the reg, most of which were in favor of its adoption.  It's currently being reviewed.

So what's the GOP doing to stop this reg from going forward?  Well, Rep. Scott Garrett, R-New Jersey, has offered an amendment to the FY2013 HUD budget that would prevent HUD from using any of its money to "promulgate, issue, establish, implement, administer, finalize, or enforce the proposed rule issued by the Secretary of Housing and Urban Development and published in the Federal Register on September 16, 2011 (76 F.R. 70921; relating to implementation of the Fair Housing Act’s Discriminatory Effects Standard)."

So that's what you do when you can't win on the merits or in the court of public opinion - you defund the thing you don't like.

PLEASE call your member of Congress and tell him or her to reject the Garrett Amendment to H.R. 5972 regarding disparate impact.  The amendment would gut fair housing protections and potentially wipe out a theory of housing discrimination that, again, EVERY SINGLE CIRCUIT has recognized.

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