The Trump administration is to be commended for the new regulations that HUD is proposing for enforcement of the Fair Housing Act, aimed at changing the disparate-impact approach used in the Obama administration. This is the approach whereby a defendant can be held liable for housing discrimination when it has a policy that is nondiscriminatory on its face, is evenhandedly applied, and was adopted with no discriminatory intent — but which leads to politically incorrect statistical imbalances. So, for example, if a landlord would prefer not to rent to individuals with a history of murdering landlords, that’s prima facie illegal if the plaintiff shows no more than that some racial or ethnic or gender or whatever group kills landlords at a higher rate than some other group. (Of course, every policy has a disparate impact on someone.)
Anyway, any reasonable person would expect the Obama regulations to be changed if for no other reason than that, since their issuance, the Supreme Court has handed down its first opinion ever on this topic. Alas, it blessed the disparate-impact approach in principle, but Justice Kennedy’s opinion also put limits on it that of course have to be honored in federal agency rules.
And so the Trump administration requires that common sense be employed at each step of the litigation: that plaintiffs identify with some precision what policy they are complaining about and how it causes an imbalance and how much; that the defendant have the opportunity to produce evidence justifying the challenged policy as pursuant to a valid interest; that if plaintiffs propose a different policy then it be just as effective in pursuing that valid interest and no more expensive; and that the burden of proof remain always with the plaintiff, as is the general rule in civil litigation.
The proposed regulations are not perfect. Perfection will require (a) the Supreme Court to overturn the aforementioned, ill-considered 5-4 decision allowing the disparate-impact approach under the Fair Housing Act at all, since that is not a fair reading of the statute and, even better, (b) a Supreme Court ruling that, in any event, the disparate-impact approach is unconstitutional since it is a requirement that decisions be made with an eye on race and achieving particular racial results, which is exactly what the Fourteenth Amendment prohibits governments from doing or encouraging others to do.
But until that happy time, the new proposed regulations are a big step in the right direction. So, again, kudos to the Trump administration, and just ignore those who will be saying, predictably, that the clock is being turned back on civil-rights enforcement, that the return of Jim Crow is imminent, and that authentic civil-rights enforcement requires not just banning actual discrimination (those rules are left unchanged by HUD) but requiring quotas and discouraging anything that gets in the way of achieving them. One last thing: There will be a 60-day comment period on the proposed regulations, and the Left can be expected to weigh in heavily, so libertarians and conservatives should as well.