7 Sep

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Disparate Impact Anaylsis

The Fight to Establish the Allegheny County Children’s Fund Continues



Disparate Impact Analysis

Last modified on 2018-09-01 12:47:13 GMT. 0 comments. Top.

On June 20, 2018, HUD requested public comment on possible amendments to HUD’s 2013 implementation of the Fair Housing Act’s disparate impact rule.[1]  Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act) prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin.[2] On February 15, 2013, HUD published a final rule, entitled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard.”[3] The rule creates liability for policies that have a disproportionate effect on protected classes, even when the policy itself has a facially “neutral” reason for being enacted, separate from discrimination.[4] For example, a rule that requires all tenants in a housing facility to have full time jobs could disproportionately affect disabled people. The purpose of the rule might be to make sure that everyone in the housing facility has the ability to afford rent, but since the rule disproportionately affects disabled people, even if they can afford rent, the rule would violate the disparate impact rule.

HUD is reviewing their disparate impact rule due to a 2015 United States Supreme Court decision in the case Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., as well as complaints from the insurance sector.[5]  The insurance sector has had to change their underwriting procedures in the past to accommodate the disparate impact rule. Courts have consistently held that housing insurers must abide by The Fair Housing Act.[6] This has required insurance companies to change their underwriting to remove any burdensome policies that could make obtaining coverage difficult for protected classes.

The Inclusive Communities Supreme Court decision upheld that disparate impact claims are recognizable under the HFA and liability can be levied against defendants that run afoul of the rule.[7] Writing for the majority, Justice Anthony Kennedy stated that Congress intended for disparate impact claims to be recognized under the FHA, and that “[r]ecognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”[8]

Critics of HUD’s disparate impact rule state that the legality of HUD’s rule was not specifically addressed in Inclusive Communities, even though it was mentioned.[9] Part of the reason that HUD is now allowing for public comment on an amendment to HUD’s disparate impact rule is that HUD wants to know how the Inclusive Communities decision should affect HUD’s policy. HUD states that it has, “received numerous comments asserting that the disparate impact rule created uncertainty for commercial decision making, as well as public policymaking, and that the rule is inconsistent with Inclusive Communities.[10] Whether the rule is inconsistent or not with the Inclusive Communities decision remains to be seen. The Supreme Court was clear that disparate impact claims were meant to be incorporated into the Fair Housing Act. Multiple other Courts have upheld this decision post Inclusive Communities.[11]

It should be noted that the deciding vote in the Inclusive Communities decision was Judge Anthony Kennedy, who retired at the end of July.[12] Kennedy has voted conservatively on a majority of issues, but voted with the liberals on the Court on a number of social issues and equal protection laws. The Court will almost certainly become more conservative in the future assuming a Trump appointee fills Kennedy’s seat on the bench. It’s likely that HUD, under the Trump administration, will have a more advantageous bench if the disparate impact rule is changed and then challenged in the Court in the future.

 

 



[1] 83 FR 28560

[2] 42 U.S.C. 3604

[3] 24 CFR Part 100

[4] Id.

[5] Inclusive Communities Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 135 S.Ct. 2507 (2015).

[6] See, e.g., Ojo v. Farmers Group Inc., 600 F3d 1205, 1208 (9th Cir. 2010); Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1360 (6th Cir. 1995); United Farm Bureau Mut. Ins. Co. v. Metropolitan Human Relations Comm’n, 24 F.3d 1008, 1016 (7th Cir. 1994); NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 301 (7th Cir. 1992); Nevels v. Western World Ins. Co., Inc., 359 F. Supp. 2d 1110. 1117-1122 (W.D. Wash. 2004); National Fair Hous. Alliance v. Prudential Ins. Co. of America, 208 F. Supp. 2d 46, 55-9 (D.D.C. 2002); Lindsey v. Allstate Ins. Co., 34 F. Supp. 2d 636, 641-43 (W.D. Tenn. 1999); Strange v. Nationwide Mut. Ins. Co., 867 F. Supp. 1209, 1212, 1214-15 (E.D. Pa. 1994).

[7] Inclusive Communities Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 135 S.Ct. 2507 (2015).

[8] Id.

[9] 83 FR 28560

[10] Id.

[11] Inclusive Communities Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 135 S.Ct. 2507 (2015).

[12] Id.



The Fight to Establish the Allegheny County Children’s Fund Continues

Last modified on 2018-09-07 16:16:01 GMT. 0 comments. Top.

The Fight to Establish the Allegheny County Children’s Fund Continues as it Moves to the November Ballot after Receiving 63,499 Signatures from across All 130 Municipalities

Over the summer, a coalition of ten Allegheny County organizations came together and has worked endlessly to introduce a voter referendum in the November election with the intent of funneling resources towards addressing early learning, after school programming, and good nutrition for kids across the county. With the slogan “Our Kids. Our Commitment,” the coalition launched the concept of creating approximately an $18 million Allegheny County Children’s Fund, funded by a .25 millage increase to homeowners, through paying an additional $25 annually on each $100,000 of assessed property value. In Allegheny County, the average median home price is around $137,000 meaning that on average, homeowners would pay around $30 per year toward the Allegheny County Children’s Fund. Want to estimate how much your annual commitment would be as a homeowner, if this ballot initiative passes? Check out this Funding Calculator.

Living in a commonwealth state, Pennsylvania residents living outside of the only first class city/county, Philadelphia, are restricted to using the voter referendum process for only funding issues they care about through passing a property tax increase via the election ballot. Residents living 1 in Allegheny County seeking to use a sales tax or other tax mechanism would then require state-level legislation to be passed and this is neither immediate nor a guaranteed, locally controlled process.

At first glance, many people will quickly turn away from the idea of having to spend more money on paying local, state, and/or federal taxes. However, with a little additional research and digging, it becomes apparent that there is a definite need for allocating funds toward kids programming, particularly for early learning programs and nutritious meals since neither receive dedicated funding. On average, Allegheny County currently allocates $8 million of funding towards after school programs, but according to an Urban Institute report titled “Poverty and Income Insecurity in the Pittsburgh Metropolitan Area”, there were 41,697 kids under the age of 18 living in poverty in Allegheny County as of 2012 [1]. Suddenly, $8 million seems massively insufficient to serve all the kids in need across the county.

So what are other cities doing to address gaps and funding deficiencies around kids programming and what outcomes have they experienced 2after introducing these funds? To provide some additional context and make the case for why establishing the children’s fund in Allegheny County is a positive idea, here are some case studies to consider ahead of the November election:

1)      City of San Antonio, Texas – PRE-K 4 San Antonio

  • Established the full-day pre-kindergarten program for four-year-olds in 2012 after passing a ballot initiative
  • Year 4 of the program ended in 2017; evaluation and monitoring of the program has occurred over this time in conjunction with the National Institute for Early Education Research and Rutgers University
  • Results show double-digit increases in literacy and math, as well as an improvement in behavior

2)      Pinellas County, FL – Juvenile Welfare Board

  • Mission of investing in partnerships, innovation, and advocacy to strengthen Pinellas County children and families
  • Four strategic focus areas developed as a framework to help kids in school and out of school: school readiness, school success, prevention of child abuse and neglect, and strengthening community
  • Funding consists primarily of ad valorem property taxes (less than 1% or .8981) and other revenue streams including interest and contributions; the Juvenile Welfare Board is authorized to levy the tax based on the Juvenile Welfare Board Special Act
  • Saw notable success in helping provide healthy meals to children and nearly all the kids served were on track to be ready for school

33)      St. Louis County, Missouri – Children’s Service Fund

  • First established in 2008 and making its first allocation in 2010, the Children’s Service Fund has invested in over $300 million in local nonprofits and governmental agencies to provide behavioral health and substance abuse treatment services for children and youth ages 19 and under across St. Louis County
  • Service areas include temporary shelter services, transitional living services, services to teen4 parents, respite care services, crisis intervention services, prevention services, home and community based intervention services, individual, group, and family counseling services, outpatient substance use treatment services, and outpatient psychiatric services
  • The Children’s Service Fund is funded by a ¼ cent sales tax measure (Proposition 1 or Putting Kids First) which created a community children’s service fund

Sources:

[1]: https://pittsburghfoundation.org/sites/default/files/2016-09/Poverty%20and%20Income%20Insecurity%20In%20Pgh%20Metro%205-18-16_0.pdf

[2]: https://ourkidsourcommitment.org/wp-content/uploads/2018/06/OKOC-FAQs-6.29.18.pdf

[3]: https://www.sanantonio.gov/Pre-K-4-San-Antonio

[4]: https://www.jwbpinellas.org/

[5]: https://www.stlouisco.com/csf/Documents

[6]: https://ourkidsourcommitment.org/wp-content/uploads/2018/06/OKOC-FAQs-6.29.18.pdf


For more information on this newsletter, please contact Adrie Fells, Outreach Intern, at afells@pcrg.org or (412) 391-6732 ext. 211.

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Adrie Fells

Adrie is a Central PA native and a diehard Steelers fan. She finished a degree in Social Sciences with a concentration in Communications and moved to South Florida. After finishing a service year with City Year Miami, she decided to return to a city she loves. She is enrolled at Duquesne University and hopes to finish in 2020. When she's not watching the Steelers, Pirates, or Penguins play, you can find Adrie buried in a book or enjoying the views the city has to offer.
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