February 13, 2026
Regulations Division
Office of the General Counsel
Department of Housing and Urban Development
451 7th Street NW, Room 10276
Washington, DC 20410-0500
Re: Docket No. FR-6540-P-01 HUD’s Implementation of the Fair Housing Act’s
Disparate Impact Standard
Submitted via regulations.gov
We, the undersigned members and allies of the Partnership for Just Housing (PJH), write to
vehemently oppose the Trump-Vance administration’s proposed rule seeking to not only
change HUD’s disparate impact standard, but effectively eliminate the standard
altogether.
Convened by the National Low Income Housing Coalition (NLIHC), VOICE of the
Experienced, the Formerly Incarcerated and Convicted People and Families Movement
(FICPFM), the National Housing Law Project (NHLP), and Bluhm Legal Clinic’s Tenant
Advocacy Center1, the Partnership for Just Housing (PJH) is a national collaborative of
directly impacted leaders and other advocates working to end housing discrimination
against people impacted by the criminal-legal system. Together, we work to advance
economic and racial equity at the intersection of housing and the criminal-legal system.
PJH centers the expertise of people with direct criminal-legal system involvement in
forming and executing its agenda.
We oppose HUD’s abandonment of its role in fighting against disparate impact
discrimination, per the Notice of Proposed Rule Making (NPRM) issued January 14,
2026, and urge HUD to withdraw the proposal. This proposal is designed to make it more
difficult, if not impossible, for people experiencing housing discrimination to challenge
discriminatory policies and practices, a change that will impact formerly incarcerated and
convicted people and their families, adding to the barriers they already face in finding safe,
stable housing. With little to no justification, the NPRM trades existing guidance and
transparency for confusion. HUD does not meet its obligations by refusing to articulate or
enforce this well-recognized basis for Fair Housing Act liability.
The Fair Housing Act of 1968 (FHA) prohibits discrimination on the basis of race, color,
religion, sex, disability, national origin, or familial status in the sale, renting, or financing of
housing. HUD has long interpreted the FHA as prohibiting not only overtly or purposefully
discriminatory housing practices, but also practices with a discriminatory impact, even if
the intention of the practice or policy is not to discriminate2.
HUD’s disparate impact standard is an important tool in identifying and remedying such
policies. In 2013, after years of seeking input and feedback from stakeholders, HUD issued
a final disparate impact rule standardizing a three-step “burden-shifting” approach to
determining whether a policy or practice has or will likely have a discriminatory effect. In
2019, the Trump-Pence administration proposed a drastic revision to the disparate impact
standard, creating a five-part set of tests that shifted the responsibility of proving
discrimination almost solely to people experiencing discrimination. These changes were
designed to make it much more difficult for people of color, women, members of the
LGBTQ+ community, immigrants, and other members of FHA’s “protected classes” to
challenge discriminatory policies and practices, tipping the legal scale in favor of housing
providers, governments, and businesses accused of discriminating3.
The 2013 disparate impact standard was reinstated by the Biden-Harris administration in
2021; now, the Trump-Vance administration is once again changing the standard to tilt the
odds against people experiencing discrimination and make it more difficult to hold bad
actors accountable, this time by “[removing HUD’s] discriminatory effects regulations and
leaving to courts questions related to interpretations of disparate impact liability.”4 This
change will exacerbate housing insecurity, particularly among formerly incarcerated and
convicted people.
HUD previously recognized the potentially discriminatory impact of broad bans against
people impacted by the criminal-legal system. In a 2016 memo (rescinded in 2025), HUD
advised housing providers that policies and practices imposing broad bans against people
with conviction or arrest histories from housing may be discriminatory under the FHA, due
to the disproportionate impact such a policy has on members of protected classes5.
Generations of biased policies and practices have led people of color – particularly Black,
Native, and Latino people – as well as people with disabilities and members of the LGBTQ+
community to be disproportionately targeted and impacted by the criminal-legal system.6
As such, unnecessarily strict policies that deny housing opportunities for people with any
conviction or arrest record are more likely to impact members of these protected classes.
Indeed, HUD notes in the memo “a housing provider that imposes a blanket prohibition on
any person with any conviction record – no matter when the conviction occurred, what the
underlying conduct entailed, or what the convicted person has done since then – will be
unable” to prove the “policy or practice is necessary to achieve a substantial, legitimate,
nondiscriminatory interest.” Removing disparate impact regulations and rescinding
previously issued guidance do not change housing providers’ obligations under the FHA;
rather, it stirs confusion and makes it less clear how housing providers should conduct
screenings in a way that upholds FHA protections.
A conviction or arrest record poses a significant barrier to finding affordable housing in an
already extremely tight rental market. Nationally, there is a shortage of 7.3 million
affordable, available rental units for people with the lowest incomes, and only 3 affordable,
available rental homes exist for every 10 families with the lowest incomes.7 Overly
restrictive screening practices, like excessive lookback times, screening for records that
have no bearing on an applicant’s success as a tenant, or screening for arrests and records
that did not result in a conviction, place people impacted by the criminal-legal system at a
significant disadvantage to finding quality, affordable housing. Formerly incarcerated and
convicted people also experience employment discrimination, making them more likely to
be unemployed or underemployed and unable to afford the growing cost of rent8.
As a result of these barriers, people who have been incarcerated once are seven times
more likely to experience homelessness than the general population, while those who
have been incarcerated more than once are 13 times more likely to experience
homelessness.9 Homelessness, in turn, puts people at increased risk of interacting with
the criminal-legal system, especially as more communities enact laws criminalizing homelessness.10 These barriers can trap people in a cycle of incarceration, homelessness,
and reincarceration from which it is difficult to escape.
While there is significant evidence of the harm overly restrictive policies cause to
individuals, families, and communities, there is no evidence justifying the blanket
exclusion of people with conviction histories from housing. Rather, studies show that once
they can access housing, people with criminal records have similar rates of maintained
housing stability as people without criminal records. Moreover, 22 Public Housing
Authorities (PHAs) have adjusted their screening policies to limit the scope of records
considered, and have not reported any significant changes to public safety outcomes.11
Access to affordable, stable housing is foundational to helping formerly incarcerated and
convicted people gain employment, advance their education, reunite with family, and
thrive.
HUD should be working to expand housing opportunities for everyone, not fighting to
dismantle the few tools it has to enforce its own policies. We urge HUD to withdraw its
harmful, regressive changes to the disparate impact standard, and continue enforcing the
2013 rule.
Sincerely,
All of Us or None Texas
Coalition on Human Needs
Community Voices Heard
Fair Chance for Housing Coalition NYC
Forward Justice
Grassroots Leadership
Illinois Justice Project
Tenant Advocacy Center
National Alliance to End Homelessness
National Housing Law Project
National Low Income Housing Coalition
The Fortune Society
The Washington Legal Clinic for the Homeless
Vera Institute of Justice
Footnotes
1 The Tenant Advocacy Clinic engages in this work on its own behalf, not on behalf of the Bluhm Legal Clinic as a whole.
2 https://www.congress.gov/crs-product/R44203
3 https://nlihc.org/nlihc-resource-disparate-impact
4https://www.federalregister.gov/documents/2026/01/14/2026-00590/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard
5 https://archives.hud.gov/news/2021/HUD_OGCGUIDAPPFHASTANDCR.pdf
6 https://www.prisonpolicy.org/research/racial_and_ethnic_disparities/
7 https://nlihc.org/gap
8 https://www.vera.org/news/the-challenge-of-finding-a-job-after-prison
9 https://www.prisonpolicy.org/reports/housing.html#:~:text=The%20revolving%20door%20%26%20
homelessness&text=But%20people%20who%20have%20been,from%20their%20first%20prison%20term
10 https://housingnothandcuffs.org/emergent-threats-homelessness-criminalization/
11 https://www.regulations.gov/document/HUD-2024-0031-001