If ever there was a policy that had a disparate impact on African-Americans, Syracuse’s obdurate refusal to keep its assessments up-to-date would be it. Under current Department of Housing and Urban Development (HUD) rules, families in Syracuse’s black neighborhoods can file a complaint with HUD alleging that the illegally out-of-date assessment system has a disparate impact upon homeowners like themselves, violating the Fair Housing Act. To start the legal process, they would simply have to show that the assessment delay had caused African-Americans unfairly high tax payments. The city would then have to try to defend the delay by showing it had a legitimate justification for failing to keep assessments up-to-date. Even if the city did so, the homeowners could still prevail by showing that there was a reasonable alternative to the city’s practice that would not have such a discriminatory effect.

The proposed Trump Administration rule throws up many technical roadblocks to filing and pursuing such a complaint, but one new procedural hurdle wouldn’t even let the black homeowners get in the door: Before the city would be required to provide a rationale for its failure to keep assessments current, the complainants would have to imagine every conceivable justification that the city might assert, and prove that each was not legitimate, without knowing what actual defense the city might claim or what standard of legitimacy HUD would impose. If the city then came up with a justification that the homeowners hadn’t refuted to HUD’s satisfaction (for example, that following state law requiring timely reassessments would be too costly), HUD could dismiss the disparate impact action. A process that requires complainants to refute defenses that haven’t yet been offered is one that is designed to block civil rights, not protect them.

In the many decades in which civil rights groups have brought disparate impact claims under the Fair Housing Act, no court has ever required such obstacles to having a disparate impact claim heard. Yet HUD proposes to impose them. Few minority plaintiffs will have the resources to hire the teams of lawyers who can jump through the hoops HUD is erecting, and then to take defendants to court after HUD has dismissed a complaint on spurious procedural grounds.

HUD’s excuse for promulgating its new rule has been that the modification is required to comply with the 2015 Supreme Court ruling (in Texas v. Inclusive Communities) that upheld the use of disparate impact claims to enforce the Fair Housing Act. But the excuse is patently false. The court’s opinion, written by Justice Anthony Kennedy, who is now retired, listed some recent cases in which an analysis of disparate impact was necessary to properly enforce the Fair Housing Act. One, for example, originated in St. Bernard Parish, an almost-all-white county bordering New Orleans. The county came up with one device after another to exclude African-Americans whose homes had been destroyed in Hurricane Katrina and who might try to resettle in the county.

The first was a racially motivated “blood relative” ordinance, prohibiting any single-family homeowner from renting his or her home to someone who was not a close relative. A federal court ordered the county to repeal the ordinance and to sign an agreement that going forward it would obey the Fair Housing Act’s prohibition on racial discrimination.

When a developer then proposed to build a mixed-income apartment complex, St. Bernard officials announced a moratorium on issuing permits, so the Greater New Orleans Fair Housing Action Center went to court, claiming that the county not only breached the agreement but also violated the Fair Housing Act. The housing group showed that a disproportionate share of potential renters would be African-Americans who had been displaced by the hurricane, and contended that there was no reasonable basis for prohibiting the project to proceed.