A federal judge is allowing the Trump administration to dismantle a key element of an Obama-era rule combating housing discrimination, giving U.S. Department of Housing and Urban Development (HUD) Secretary Ben Carson a big legal victory in his efforts to fundamentally scrap the rule.
A coalition of fair housing advocates and the state of New York sued HUD after the federal agency announced last May it was no longer requiring cities and towns to complete a comprehensive assessment explaining how housing segregation exists in their communities, and how they plan to address it.
Completing the assessment was a prerequisite for receiving federal housing funds and was the key enforcement mechanism of the Obama administration’s Affirmatively Furthering Fair Housing rule (AFFH) created in 2015 to help enforce the Fair Housing Act of 1968.
HUD had poorly enforced the Fair Housing Act for decades, which has allowed housing segregation to persist throughout the country.
But Carson has characterized the Fair Housing Act and other desegregation government initiatives, including the AFFH rule, as a failed “social experiment” and HUD has been attacking the rule since January on a number of different fronts.
The ruling by U.S. District Court Judge Beryl Howell on Friday is a major loss for fair housing organizations that for years, have been pushing HUD to better enforce the Fair Housing Act and desegregate housing.
“Since the law was passed 50 years ago, HUD has not had an effective means for ensuring compliance with the Fair Housing Act. This ruling means a failed system will continue. We are deeply concerned particularly since the court’s opinion acknowledges that the current system is flawed,” the National Fair Housing Alliance, the coalition involved in the lawsuit said in a statement Friday.
“The evidence is clear that the court’s action will lead to continued fair housing litigation against jurisdictions and housing authorities which is an extremely costly way to achieve the goals of the Affirmatively Furthering Fair Housing mandate,” the NFHA continued. “This is a significant setback for the millions of Americans that depend on our government to protect and enforce their civil rights.”
Officials at HUD did not immediately respond to requests for comment on Saturday.
Since January, HUD has attacked key aspects of the rule. On Monday, the agency put out a press release announcing it was seeking comment so it could fundamentally change the AFFH rule as a whole. HUD said it wanted to make the rule less burdensome, with less of a focus on cities and towns analyzing housing segregation in their own communities. It said it wanted to give localities more control, to increase the nation’s housing supply, and use federal resources more efficiently.
In an interview with the Wall Street Journal published the same day, Carson said he wanted to replace the AFFH rule and enforce the Fair Housing Act by forcing communities to rollback strict local land-use rules that have curbed home construction and made new development more costly and difficult, in order to receive HUD grants.
While communities across the country have created strict zoning policies that prevent low-income people from moving there, contributing to housing segregation, housing advocates say such a policy should not replace the AFFH rule and are skeptical of Carson’s plans.
“I don’t see that as a replacement. I don’t think most of us in the fair housing community have any problem with looking into restrictive zoning,” Sasha Samberg-Champion, an attorney with Relman, Dane and Colfax told ThinkProgress. He noted that HUD has not yet proposed anything that would address burdensome zoning restrictions and that Carson’s announcement was “a bit of a misdirection.”
The AFFH rule “makes sure that everybody has access to the housing that is built,” added Samberg- Champion, who helped argue the AFFH case in federal court last week on behalf of the coalition. The purpose of AFFH, he said, is to accomplish truly integrated communities and that simply easing zoning restrictions doesn’t “address this legacy of segregation in cities across the country.”
The fight for AFFH in federal court
During a hearing at U.S. District Court in Washington D.C. last week, a Department of Justice trial attorney representing HUD argued the housing coalition and New York State lacked standing because they were not harmed by the rollback of the AFFH assessment tool and defended HUD’s decision based on the high costs associated with the assessment. And while HUD had claimed it was rolling back the tool so it could be improved, the DOJ attorney admitted the federal agency had no timeline for releasing a new version.
Housing advocates in court argued that HUD hasn’t given a firm breakdown of the assessment’s cost and that the rule has been effective and without it, there is no way of forcing public housing authorities to address racial segregation in their communities.
In her opinion on Friday, Judge Howell wrote that while HUD admitted that the agency had poorly enforced the Fair Housing Act in the past and the tool it dismantled was “superior” to the previously existing system, she agreed with the federal agency that the housing coalition and New York State lacked standing to sue.
Advocacy organizations had claimed that the assessment tool required community participation to complete, affecting their ability to engage with members of the local communities during the process. And New York State officials added that the data collected from the assessment tool helps implement statewide policies. Judge Howell said the housing organizations did not prove that the dismantlement of the tool would force them to divert more resources and expenses to fulfilling its missions.
The Obama administration began rolling out the more structured and robust assessment tool starting in October 2016 and so far, a number of grant-seeking communities have completed it, including New Orleans and the Philadelphia Housing Authority.
A subsequent round of communities was supposed to submit analyses in April, but HUD announced it was delaying the implementation of the rule until sometime between 2020 and 2024. The Housing coalition and New York State sued HUD over the decision in early May. The lawsuit claimed HUD had given no notice and had held no comment period as required by law before making the decision, and that the federal agency was reneging on its legal obligation to take meaningful steps to address housing segregation.
After the lawsuit was filed, HUD put out new notices in the federal register that essentially stopped requiring cities and towns to complete the assessment tool and address housing segregation in their communities, in order to receive federal funds. HUD in its notices 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.
Housing advocates claimed HUD should have known that additional resources would be needed to implement it, and that it should be able to improve the tool while continuing to roll it out.