The FY 2015 Commerce, Justice, Science Appropriations Act (H.R. 4660) passed by the House of Representatives includes an amendment (H. Amdt. 768) that prohibits the U.S. Department of Justice from using any of the funding provided by the Act to enforce the Fair Housing Act using a disparate impact theory.  The amendment reads as follows: 

None of the funds made available in this Act may be used by the Department of Justice to enforce the Fair Housing Act in a manner that relies upon an allegation of liability under 24 C.F.R. 100.500.  

The CFR provision cited in the amendment is found in HUD’s rule adopted in February 2013 that formalized HUD’s use of disparate impact liability under the FHA.  The bill now moves to the Senate. 

As we reported earlier this week, the U.S. Supreme Court could have its third opportunity since 2012 to provide clarity with respect to disparate impact claims under the FHA if it grants the petition for certiorari filed in Inclusive Communities Project v. Texas Dep’t of Housing.  We are also following the case brought by insurance industry trade groups pending in federal district court in Washington, D.C. that includes a challenge to HUD’s use of disparate impact.