Trump administration scraps housing segregation rule

Critics call HUD's moves to jettison the Obama-era regulation "arbitrary and capricious"

LAKEWOOD, CO - OCTOBER 29:  Republican presidential candidate Ben Carson speaks during a news conference before a campaign event at Colorado Christian University on October 29, 2015 in Lakewood, Colorado. Ben Carson was back on the campaign trail a day after the third republican debate held at the University of Colorado Boulder.  (Photo by Justin Sullivan/Getty Images)
LAKEWOOD, CO - OCTOBER 29: Republican presidential candidate Ben Carson speaks during a news conference before a campaign event at Colorado Christian University on October 29, 2015 in Lakewood, Colorado. Ben Carson was back on the campaign trail a day after the third republican debate held at the University of Colorado Boulder. (Photo by Justin Sullivan/Getty Images)

The Trump administration is effectively scrapping an Obama-era rule that requires cities to submit comprehensive plans on how they will address housing segregation in their own neighborhoods before receiving federal funds. 

HUD’s latest decision, published in the federal register on Wednesday, essentially ensures cities and towns seeking federal funds will be no longer be forced to take any steps to reduce segregation under the watchful eye of the federal agency.

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Under Secretary Ben Carson, the Department of Housing and Urban Development had already delayed the implementation of the rule by several years — prompting a coalition of housing advocates and the State of New York to file a civil lawsuit against the administration

The Affirmatively Furthering Fair Housing (AFFH) rule was created by the Obama administration to help enforce the Fair Housing Act of 1968, which sought to combat the racial segregation of neighborhoods. Since the passage of the Fair Housing Act, the law has been poorly enforced and housing segregation has persisted. 

HUD on Wednesday got rid of a key component of the Obama-era rule: the comprehensive and uniform assessment tool cities and towns needed to complete that described how housing segregation persisted in their communities and how they planned to address it.

The assessment tool “was having a transformative positive effect in communities across the country,” said Thomas Silverstein, counsel in the Fair Housing & Community Development Project at the Lawyer’s Committee for Civil Rights Under Laws, one of the groups involved in the lawsuit.

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“HUD should provide local communities with the support and oversight they need to tackle entrenched barriers instead of returning to the failed policies of the past,” he said.

But Carson has described the Fair Housing Act and other neighborhood desegregation efforts, including the Obama-era rule, as a failed “social experiment.” 

The latest decision by HUD forces the coalition to amend arguments in their lawsuit filed at U.S. District Court in Washington D.C., which it plans to do on Tuesday. But members do not believe it changes their basic argument, and are convinced that HUD’s reason for suspending the rule will not stand up in court.

“We are on the same track and we will get the same result, which is that HUD will have to reinstate the AFFH rule,” said Sasha Samberg-Champion, an attorney with Relman, Dane and Colfax, one of the firms involved in the lawsuit. “The basic thrust of the argument is exactly the same, which is HUD doesn’t have the authority to suspend the AFFH rule in this way and the reasoning for doing it is flawed in such a way that it is arbitrary and capricious.”

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After passing the AFFH rule in 2015, the Obama administration began rolling it out in stages in October 2016. So far, a number of communities seeking grants have completed analyses using the more clear, structured, and robust assessment tool created under the rule, including New Orleans and the Philadelphia Housing Authority. A number of communities were supposed to turn in their analyses in April. Now, with HUD’s decision to suspend and withdraw the rule, it is unclear if those cities will be required to complete them.

Earlier this month, the coalition of fair housing advocates and New York State filed a lawsuit at U.S. District Court in Washington D.C. suing HUD over its decision not to require grant-seeking cities and towns to complete the newly created housing segregation assessment until sometime between 2020 and 2024 in January.

The lawsuit argues that 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 HUD was reneging on its legal obligation to take meaningful steps to address housing segregation.

But Tuesday’s announcement indicates a change in HUD’s strategy as it discards the key assessment mechanism created under the Obama-era rule. HUD will eliminate the tool communities use to assess racial discrimination, and seek public comment “on the best framework for local governments to further fair housing choices in their communities,” the department said in a press release.

Since the coalition’s lawsuit challenged an extension of the AFFH rule’s deadline, it will need to be amended to argue why the latest decision is also unlawful.

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In its notice in the federal register, HUD also attempted to bolster its argument for scrapping the assessment. This included objections to the data being collected, and what the agency says was a lack of proper guidance on the regional analysis portion and errors on the goals section. It also took issue with the cost and resources needed to implement the assessment. 

Advocates said HUD should have expected a learning curve in implementing the rule and that additional resources were needed. Samberg-Champion said he agrees with HUD that improvements are needed the assessment tool but said the agency should be able to undertake the changes while continuing to roll it out.

“We think HUD is capable of walking and chewing gum at the same time,” he said.

On Tuesday, HUD published two other notices in the federal register that extends the comment period on the assessment tool and requires communities to continue assessing housing discrimination in their communities.

Spokesman Brian Sullivan said HUD’s latest decision was made because the assessment tool was confusing and difficult to use and was not influenced by the ongoing litigation. But critics strongly suspect that Wednesday’s actions were made in response to the lawsuit.

“I can’t imagine that the lawsuit had nothing to do with the move especially with the flurry of notices that were issued. I would find it very hard to believe that the lawsuit had no impact,” said Renee Williams, staff attorney at the National Housing Law Project, which plans to file an amicus brief in support of the lawsuit.

Williams said even if HUD improves the assessment tool down the road, getting rid of it in the short term would have “effectively the same effect” as the previous decision to delay AFFH. That will be harmful to poor people and minorities who will continue to be segregated into neighborhoods without any federal oversight.

“We won’t see this for a number of years and that in itself is harmful. We are going back to a process that is largely ineffective,” Williams said.