HUD Withdraws Fair Housing Guidance Documents

On September 16th and 17th, the U.S. Department of Housing and Urban Development (HUD) circulated two memoranda outlining the new goals and priorities of the Office of Fair Housing and Equal Opportunity (FHEO) respecting fair housing enforcement. Both HUD memoranda are internal documents directed to HUD FHEO staff. Each removes prior HUD opinions and guidance on the meaning of the Fair Housing Act. These prior materials and guidance deal with such topics as: appraisal discrimination; protections for persons with Limited English Proficiency; reasonable accommodations for disabled persons’ use of assistance animals; and municipal land-use practices.

The September 16th memorandum (“Fair Housing Act Enforcement and Prioritization of Resources”) explains the current Administration’s views on prior positions. For example, the memo asserts that the FHA protects everyone equally (i.e., “protected classes” are not limited to minority groups), so that, for example, HUD investigations of appraisal and financial discrimination claims should not consider whether the complained of practices occurred in or harmed a “protected-class concentrated area.”

The September 16th memo also makes clear that the HUD will not use the disparate-impact theory of liability. Rather, FHEO staff must prioritize resources for cases with strong evidence of intentional discrimination against a “bona fide purchaser or renter,” suggesting that cases brought by fair housing organizations and/or testers are also not to be pursued. Additionally, the September 16 memo requires that, before a conciliation or charge is issued by FHEO, a detailed “priority memorandum” must be provided to the political leadership at headquarters for approval.

The September 17th memorandum (“Notice of the Withdrawal of FHEO Guidance Documents”) lists additional guidance FHEO has determined should not be enforced or  otherwise relied upon by HUD. This includes Executive Order 13988 which drew on the Supreme Court’s Bostock decision to mandate that all federal agencies interpret prohibitions on sex discrimination in federal laws to include discrimination based on sexual orientation and gender identity. FHEO’s legal interpretation on the permissibility of special purposes credit programs under the Fair Housing Act has also been withdrawn.

State and local enforcement and private litigation, however, are unlikely to be significantly affected by these new HUD positions. Since the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, courts determining the meaning of statutory provisions no longer give great deference to agency interpretations, but rather follow those interpretations only to extent they are persuasive, consistent over time, and have sound reasoning.