HUD and the Disparate Impact Rule

On June 25, 2021, President Biden’s newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule “better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act’s remedial purposes.” By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.

Critics of Secretary Fudge’s proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons on October 11, 2021.

Paul Compton

Founding Partner

Compton Jones Dresher

Morgan Williams

General Counsel

National Fair Housing Alliance

Devon Westhill

President and General Counsel

Center for Equal Opportunity

Race & Sex

Federalist Society’s Civil Rights Practice Group

Federalist Society’s Financial Services & E-Commerce Practice Group

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at

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