Last fall, the Department of Housing and Urban Development completed a rule that would have weakened anti-discrimination policies regulating the mortgage industry.
The move drew a highly unusual request from the country’s four biggest banks — which would benefit from the proposed changes — that the department avoid rewriting the requirements. The federal government “should acknowledge that Americans’ attention to racial discrimination is more pronounced and expansive,” Michael DeVito, Wells Fargo’s executive vice president for home lending, wrote in a letter to the housing secretary, Ben Carson.
Civil rights lawyers sued the department, and in October, a federal judge in Massachusetts issued a nationwide injunction on the rule, finding it arbitrary and capricious.
“These significant alterations, which run the risk of effectively neutering disparate impact liability under the Fair Housing Act, appear inadequately justified,” Judge Mark Mastroianni wrote.
Among the first cases in which the Supreme Court tackled disparate impact was an education dispute, Lau v. Nichols, in which non-English-speaking Chinese students sued the San Francisco Unified School District for not offering bilingual education or remedial English, arguing that they were not afforded the same educational benefits as their English-speaking peers.
In 1974, the court ruled in favor of the plaintiffs, citing an agency regulation issued under Title VI that said that “discrimination is barred which has that effect even though no purposeful design is present.”
The case cemented the concept of disparate impact as a bedrock of educational civil rights enforcement and is also credited for robust programming for English-language learners now. The Justice Department’s move could jeopardize that, advocates warned.
“Deleting this regulation not only denies the government an important enforcement tool for detecting and addressing racial discrimination, but it will draw into question longstanding requirements that organizations that take federal funds from the department provide meaningful access to their programs to people who do not speak or read English,” said Seth Galanter, the senior director of the National Center for Youth Law.