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Judicial Watch, Allied Educational Foundation File Amicus Curiae Brief Challenging HUD Disparate Impact Racial Regulation

Brief Argues HUD Regulation "Attempts to Further Enshrine the Intellectually Impoverished Concept of Race Into Law"

WASHINGTON, DC -- (Marketwired) -- 02/07/14 -- Judicial Watch announced today that it has joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the U.S. District Court for the District of Columbia in support of the insurance industry lawsuit challenging the Housing and Urban Development's (HUD) policy of enforcing disparate impact liability under the Fair Housing Act (FHA), even in instances where there is no direct evidence of discriminatory intent.

Under the theory of "disparate impact," a defendant can be held liable for discrimination for a race-neutral policy that statistically disadvantages a specific minority group even if that negative "impact" was neither foreseen nor intended. In such cases, defendants can be forced to pay for harm caused not by their own actions, but by economic and statistical realities, even if beyond their control.

Specifically, Judicial Watch argues that the HUD disparate impact regulation violates both the Administrative Procedures Act (APA) (restricting federal agencies from exceeding the powers given to them by statute) and the Fourteenth Amendment Equal Protection Clause. According to the amicus brief:

I. HUD's Rule Violates the Administrative Procedures Act

Section 804(a) of the FHA does nothing more than make it unlawful to "refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." The phrase "because of race" conveys the fact that race must be the reason (or at least a reason) for the refusal. Accordingly, under the statute's plain text, there must be an intent to discriminate against a member of one of the named classes in order for the action to be unlawful. HUD's interpretation is inconsistent with the plain meaning of the statute, and so the regulation must be stricken.

II. Any Interpretation of the FHA That Would Allow HUD's Rule Would Violate the Equal Protection Clause

Any interpretation of the FHA Section 804(a) which allows HUD's regulation would render the FHA unconstitutional... HUD's interpretation of the FHA would be unlikely to survive strict scrutiny, as the Supreme Court does not view "racial balancing" as a compelling state interest. In fact, the Supreme Court has found quite the opposite: "At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class."

Warning that HUD's "unlawful action poses a serious threat to the rule of law," the Judicial Watch/AEF brief argues:

HUD's broad, race-based housing regulation is especially harmful because it attempts to further enshrine the intellectually impoverished concept of race into law, and seeks to use the law to perpetuate a culture of racial politics in the housing market, and more broadly, in American public life. Such actions will serve to increase racial polarization and resentment in this country, perpetuating our domestic focus on 'racial' issues, and inevitably prolonging the misconception that a person's 'race' is a useful distinction for judging who a person is and what they are entitled to.

Judicial Watch previously has gone to court three times in its efforts to expose and oppose the Obama administration's illicit racial policies. On November 2, 2012, it filed a Freedom of Information Act (FOIA) lawsuit against HUD seeking documents relating to possible collusion between the Obama administration and the city of St. Paul, MN, in withdrawing a disparate impact appeal pending before the U.S. Supreme Court. On September 3, 2013, it filed an amicus brief with the Supreme Court on behalf of the township of Mt. Holly, New Jersey, arguing that the FHA prohibits only disparate treatment, not alleged discriminatory intent. And on September 24, it filed a Freedom of Information (FOIA) lawsuit against HUD for all records of communications regarding two disparate impact housing discrimination lawsuits, Magner v. Gallagher and the Township of Mt. Holly v. Mt. Holly Gardens Citizens Association. Mount Holly like Magner, was withdrawn from the Supreme Court docket before arguments could be heard.

"The Obama administration wants, in the words of this brief, 'to perpetuate a culture of racial politics in the housing market, and more broadly, in American public life,'" said Judicial Watch President Tom Fitton. "The Obama administration's race card is dangerous and detrimental to the basic concept of equal justice under law."

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