Fair housing advocates asked a federal judge on Thursday to reinstate a key element of an Obama-era rule combating housing segregation that the Trump administration rolled back in May.
The coalition of fair housing advocacy organizations and New York State are suing the Department of Housing and Urban Development (HUD) over a notice it posted in the Federal Register in May, informing local cities and towns that they no longer had to complete a comprehensive and uniform assessment tool explaining how housing segregation exists in their community and how they planned to address it, in order to receive federal housing grants.
That assessment was a key component of the Obama administration’s Affirmatively Furthering Fair Housing rule (AFFH), which attempted help enforce the Fair Housing Act of 1968. The rule was created in 2015 because the Fair Housing Act had been poorly enforced over the years, allowing housing segregation to persist throughout the country.
The assessment tool was at the heart of Thursday’s hearing at U.S District Court in Washington, D.C. Daniel Halainen, a U.S. Department of Justice trial attorney representing HUD, argued the housing coalition and the State of New York lacked standing to sue because they were not harmed by the regulatory rollback and defended HUD’s decision based on the high costs associated with the assessment.
Housing advocates argued that HUD hasn’t given a firm breakdown of the assessment’s cost. They also said the rule has been effective and that without it, there is no way of forcing public housing authorities to address racial segregation in their communities.
U.S. District Court Judge Beryl Howell, meanwhile, asked pointed questions to both sides, particularly around what kind of enforcement mechanisms would exist if the rule was removed.
Howell did not make a decision from the bench on Thursday. And while HUD has claimed it is rolling back the tool so it can be improved, when questioned by the judge, Halainen admitted the federal agency has no timeline for releasing a new version.
“We thought the argument went very well. We are very pleased with how prepared Judge Howell clearly was. She read the record, she understood what happened,” said Sasha Samberg-Champion, an attorney with Relman, Dane and Colfax, after the hearing.
“We think it’ll be very clear to her that HUD acted unlawfully and we’re optimistic that she will be ordering the rule be reinstated in short order,” added Samberg-Champion, who helped argue the case on behalf of the coalition in court on Thursday.
The Obama administration began rolling out the more structured and robust assessment tool starting in October 2016. So far, a number of grant-seeking communities have completed it, including New Orleans and the Philadelphia Housing Authority.
But Secretary Ben Carson has characterized the Fair Housing Act and other government initiatives to desegregate neighborhoods, including the Obama-era rule, as a failed “social experiment.” In January, HUD announced it would delay the implementation of the rule until sometime between 2020 and 2024.
The housing coalition and the State of New York sued HUD over the decision in early May. The lawsuit claimed HUD gave no notice and held no comment period as required by law before making the decision, that its reasoning for doing so was inadequate, and that the federal agency was reneging on its legal obligation to take meaningful steps to address housing segregation.
Following the lawsuit, HUD put out additional notices in the federal register that essentially stopped requiring cities and towns seeking federal funds to take any steps to reduce segregation in their own community under the watchful eye of the federal agency. In its notices, HUD raised objections to the data being collected for the assessment tool, the costs and resources needed to implement it, and claimed there was a lack of proper guidance on its regional analysis portion and errors on the goals section.
But advocates have claimed that HUD should have expected a learning curve in implementing the tool and that additional resources were needed. Samberg-Champion said HUD should be able to improve the tool when continuing to roll it out.
The next round of communities were supposed to submit their analyses in April, but HUD’s suspension of the rule has upended the process; now it is unclear if those cities will be required to complete their assessments. When asked by Judge Howell, Halainen said he did not know when an improved assessment tool would be completed.
Judge Howell asked both sides about the sections of the AFFH rule that remained and how HUD would be able to enforce it without the assessment tool. Specially, she asked about a consolidated plan that communities still need to complete when seeking federal funds from HUD. Communities outline how they plan on spending federal funds in those comprehensive plans, which incorporates plans to address racial segregation.
But, as Samberg-Champion argued, the guidance document does not allow HUD to review and enforce how communities try to tackle segregation the way the rolled-back assessment tool does — meaning there will be no way to ensure communities are properly furthering fair housing. And while advocacy groups can file a complaint against a community with HUD, the federal agency is not required to investigate it.
“The judge appropriately focused on the distinction between carrying out an assessment under the rule and carrying out an assessment without the tool and in a process that HUD had previously deemed failed,” said Morgan Williams, general counsel at the National Fair Housing Alliance, one of the groups involved in the lawsuit.
Advocacy groups also said they were being harmed by HUD’s decision and have standing to file the lawsuit because the assessment tool required community participation to complete, affecting their ability to engage with members of the local communities during the process. New York State officials added that the data collected from the assessment tool helps them implement statewide policies.