Trump’s HUD Proposes Good New Regulations | Center for Equal Opportunity

The Trump administration is to be commended for the new regulations that the Department of Housing and Urban Development 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.

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But if the president’s proposed regulations are praiseworthy, his tweets are often a different story. During the last presidential election, I reassured people that Donald Trump was not thoughtful enough to be a fascist, and after recent tweets (I’m thinking in particular about the “go back” tweet aimed at “the squad”) I would add that he is not coherent enough to be a racist.

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I recently responded to “Diversity’s Worst Failure – the Faculty,” an excellent article on Minding the Campus by Professor Mark Bauerlein, with this:

As usual, Professor Bauerlein is right on the mark. I’ll just add that recruiting, hiring, and promoting in a way that discriminates on the basis of race, ethnicity, and sex is not just wrongheaded but also illegal. Some might think that, because the Supreme Court has (alas) allowed such preferential treatment when universities select students, it must be just as permissible for them to do so when they select faculty, but in fact the statutes and case law are quite different. See this link and the links therein: https://www.nas.org/articles/A_Half-Dozen_Push-Backs_for_Faculty_Hiring_Committee_Meetings. In my humble opinion, in 2019 no university can justify faculty discrimination.

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Finally, the U.S. Commission on Civil Rights recently issued an execrable report, ““Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities.” The two sane commissioners, our friends Peter Kirsanow and Gail Heriot, dissented; you can read Pete’s National Review Online discussion here. Gail wrote about the matter in the Washington Times, and I seconded her analysis with this:

Kudos to Gail Heriot, a member of the U.S. Commission on Civil Rights, for her excellent analysis, “Threatening teachers’ ability to control their classrooms.” She powerfully refutes the Commission majority’s recent report that claims, with no evidence, that all racial and ethnic groups commit disciplinable offenses at the same rates. She is also correct in criticizing the Commission’s apparent suggestion, therefore, that teachers are racists — and in predicting that quota-driven discipline policies will end up hurting poor and minority students (and their teachers) the most, since it is their unruly (and dangerous) classmates who will be left to disrupt their classrooms.

I write only to elaborate on the point that Professor Heriot makes briefly at the end, that the Trump administration’s rescinding of the Obama administration’s school-discipline “guidance” was correct not only as a matter of sound public policy but also as a “matter of law.” Indeed it was: The guidance’s quota-driving “disparate impact” approach was legally suspect under both the Fourteenth Amendment to the Constitution and Title VI of the 1964 Civil Rights Act, besides being procedurally invalid under both the Administration Procedure Act and the Congressional Review Act.

So here’s hoping that the Trump administration continues its good work and formally rejects the federal regulations that still require the disparate-impact approach and were used to try to justify that Obama-era “guidance” — and have led to many other bad federal policies as well, affecting everything from environmental law to local policing.

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