January 15, 2026: Through this rulemaking, HUD is proposing to remove its discriminatory effects regulations and leaving to courts questions related to interpretations of disparate impact liability under the Fair Housing Act.
Brittany Page discusses her recent experience at Senator Elizabeth Warren's Spotlight Forum, featuring testimony from two former HUD Civil Rights Attorneys who have come forward to detail the failures of the Trump Administration to enforce fair housing and civil rights protections.
Brittany interviews the two whistleblowers, Paul Osadebe and Palmer Heenan, who have risked their careers to warn the American public that the Department of Housing and Urban Development under Donald Trump is unconcerned with Americans at risk of homelessness who are experiencing discrimination in housing.
This document has a comment period that ends in 28 days. (02/13/2026)
Department of Housing and Urban Development
24 CFR Part 100
[Docket No. FR-6540-P-01]
RIN 2529-AB09
FOR FURTHER INFORMATION CONTACT:
Scott Knittle, Principal Deputy General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; telephone number (202) 402-2244 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
SUPPLEMENTARY INFORMATION:
Background
Title VIII of the Civil Rights Act of 1968, as amended (“the Fair Housing Act” or “the Act”), prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin.[1] On February 15, 2013, at 78 FR 11460, HUD published a final rule entitled “Implementation of the Fair Housing Act's Discriminatory Effects Standard” (“the 2013 rule”). The 2013 rule established regulations in 24 CFR part 100 to formalize an interpretation that discriminatory effect, or disparate impact, liability is cognizable under the Act. It also codified a burden-shifting framework onto the defendant for analyzing disparate impact claims, relying in part on existing case law under the Fair Housing Act, decisions by HUD's administrative law judges, and Title VII of the Civil Rights Act of 1964 (which relates to employment discrimination).[2]
In 2015, the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., ( Inclusive Communities ).[3] In this case, the Court discussed the standards for, and constitutional questions and necessary limitations regarding, disparate impact claims. On June 20, 2018, at 83 FR 28560, HUD published an advance notice of proposed rulemaking (“ANPRM”) inviting public comment on “what changes, if any” to the 2013 rule were necessary as a result of Inclusive Communities. Following the ANPRM and a subsequent proposed rule published on August 19, 2019, at 84 FR 42854, HUD published a final rule titled “HUD's Implementation of the Fair Housing Act's Disparate Impact Standard” on September 24, 2020 (“the 2020 rule”) at 84 FR 42854. The 2020 rule amended HUD's disparate impact regulations to implement the Supreme Court's decision in Inclusive Communities and to provide clarification regarding the application of the standard to State laws governing the business of insurance.
Prior to the effective date of the 2020 Rule, the U.S. District Court for the District of Massachusetts in Massachusetts Fair Housing Ctr. v. HUD issued a preliminary injunction staying the implementation and postponing the effective date of the 2020 Rule.[4]
Pursuant to a Presidential Memorandum issued on January 26, 2021, at 86 FR 7487, HUD published a proposed rule at 86 FR 33590 to reinstate the 2013 rule, followed by a final rule titled “Reinstatement of HUD's Discriminatory Effects Standard” on March 31, 2023 (“the 2023 rule”) at 88 FR 19450.
JUSTIFICATION FOR RULEMAKING
Several factors have prompted HUD to reconsider its discriminatory effects regulations. On April 23, 2025, the President issued Executive Order 14281 titled “Restoring Equality of Opportunity and Meritocracy” (“E.O. 14281”).[5] The Executive Order states that equal treatment under the law is a “bedrock principle of the United States” which “guarantees equality of opportunity, not outcomes.” [6]
The Order asserts that disparate impact liability “endangers this foundational principle” by creating a “near insurmountable presumption of discrimination” when there are any differences in outcomes, “even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.” [7] As such, the Order established that “it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” [8]
E.O. 14281 instructs all federal agencies including HUD to, in coordination with the Attorney General, review existing regulations and rules that impose disparate impact liability and consider amendment or repeal of these regulations as appropriate under applicable law. Consistent with this, HUD has reviewed its disparate impact regulations and related prior rulemakings and determined they are unnecessary. HUD's prior assertion, that its disparate impact regulations provided clarity and predictability for all parties engaged in housing transactions (78 FR 11460), is diminished by the facts that case law continues to develop and HUD's regulation does not provide an up-to-date picture of the legal landscape. Furthermore, according to the Supreme Court's decision in Loper Bright Enterprises v. Raimondo (“ Loper Bright” ),[9] federal agency interpretations of statutes and agency actions that rely on them do not receive any judicial deference. The reviewing court itself must determine the best interpretation of a statute and then assess whether the challenged agency action falls within the scope of that interpretation.[10] A reviewing court is free to consider, or not, an agency's interpretation, and in any case the court may not simply defer to the agency's interpretations where the court finds the underlying statute to be ambiguous.[11]
As a result, HUD's prior disparate impact rulemakings, HUD's interpretation of the Fair Housing Act, and the codification of that interpretation in regulations, do not carry deferential weight. A reviewing court may wholly reject HUD's claims in prior rulemakings that the regulations provide greater clarity and predictability and may vacate or set aside HUD's rules.[12] It is appropriate for courts, not a Federal agency, to make determinations related to the interpretation of disparate impact liability under the Fair Housing Act. Additionally, consistent with the current regulatory reform efforts and in accordance with Executive Order 14192 of January 31, 2025 (“Unleashing Prosperity Through Deregulation”), and Executive Order 14219 of February 19, 2025 (“Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative”), HUD is undertaking a comprehensive review of its regulations to reduce unnecessary regulatory burdens, enhance the effectiveness of those regulations that are necessary, and promote principles underlying the rule of law. Removing HUD's disparate impact regulations is consistent with the principles of E.O. 14281 and regulatory reform efforts.
Footnotes
1. 42 U.S.C. 3601-3619, 3631. This preamble uses the term “disability” to refer to what the Act and its implementing regulations term a “handicap.” See, e.g., Hunt v. Aimco Props., L.P., 814 F.3d 1213, n.1 (11th Cir. 2016) (noting the term disability is generally preferred over handicap).
2. See 24 CFR 100.500(c). In 2016, HUD also published a notice that supplemented its responses to certain comments made by the insurance industry during the rulemaking. See “Application of the Fair Housing Act's Discriminatory Effects Standard to Insurance,” 81 FR 69012 (Oct. 5, 2016).
3. 576 U.S. 519, 519, 532-35 (2015).
4. Mass. Fair Hous. Ctr. v. United States HUD, 496 F. Supp. 3d 600, 611 (D. Mass. Oct. 25, 2020).
6. Id.
7. Id.
8. Id.
9. 603 U.S. 369 (2024) (hereinafter “ Loper Bright ”).
10. Id. at 395, 412-13.
11. See id. at 413.
12. E.g., Env't Def. Fund v. U.S. Env't Prot. Agency, 124 F.4th 1 (D.C. Cir. 2024) (final rule determined unlawful and parts of it vacated); U.S. Sugar Corp. v. Env't Prot. Agency, 113 F.4th 984 (D.C. Cir. 2024) (per curiam) (final rule set aside in part).
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