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Biden Signs Executive Orders to Re-evaluate Fair Housing Policies

January 27, 2021

President Joe Biden signed several executive orders on Tuesday aimed at addressing racial equity, including one that directs the Department of Housing and Urban Development to reassess the effects of regulatory actions on fair housing policies and laws. It orders HUD to ensure the Fair Housing Act’s requirements have been followed.

The memorandum states the “Fair Housing Act requires the federal government to advance fair housing and combat housing discrimination, including disparate impact discrimination that appears neutral but has an unjustified discriminatory effect in practice.”

Disparate impact, a legal doctrine, allows courts to consider a policy or practice discriminatory if it has a disproportionately adverse impact on any group based on race, national origin, religion, sex, familial status, or disability, and there is no legitimate business necessity for the policy. The Supreme Court held in its Inclusive Communities decision in 2015 that disparate impact was a cognizable form of discrimination under the Fair Housing Act.

The Trump administration had revised HUD’s interpretation of disparate impact rule under the Fair Housing Act to make it more difficult for plaintiffs to prove discrimination under this theory of proof. Last year, a federal judge prevented HUD from implementing the rule.

The memorandum distributed by Biden on Tuesday calls on HUD to reassess and determine if the disparate impact rule issued during the Trump administration harms access to fair housing and whether it should be returned to the former standard.

When Biden took office last Wednesday, he signed multiple orders that include ordering the federal government “to pursue a comprehensive approach to advancing equity for all.”

“The nation is ready for change,” Biden said at a press conference on Tuesday. “But government has to change as well. We need to make equity and justice part of what we do every day … Again, I’m not promising we can end it tomorrow, but I promise you: We’re going to continue to make progress to eliminate systemic racism, and every branch of the White House and the federal government is going to be part of that effort.”

Biden Signs Memorandum to Advance Fair Housing,” National Association of Home Builders’ Eye on Housing blog (Jan. 26, 2021); “Biden Signs Series of Executive Orders Aimed at Racial Equity,” The Hill (Jan. 26, 2021)