The U.S. Department of Housing and Urban Development (HUD) got off to a slow start under new secretary Ben Carson, but activity at the agency has picked up of late.
Earlier this year, it announced its intention to delay the Affirmatively Furthering Fair Housing (AFFH) rule because, according Carson, the local jurisdictions subject to the rule need more time and assistance to adapt to the numerous requirements it would impose on states, counties, and cities.
It’s the same reasoning HUD used in trying to delay another Obama-era anti-segregation measure—the Small Area Fair Market Rent (SAFMR) rule. That attempted delay was ultimately defeated in court earlier this year on the grounds that it violated the Administrative Procedures Act. HUD now says it’s implementing the SAFMR rule.
Given the similarities in the two cases not only within HUD, but across the Trump administration’s attempts to delay or repeal anything the Obama administration tried to implement, the delay of the AFFH rule is almost certain to be challenged in court.
“There’s a group of advocates who’ve consulted us about litigating this issue in basically seeking a federal court’s order that HUD put this back into effect,” said Michael Allen, a partner at the civil rights law firm Relman, Dane, and Colfax. “We’re taking a look at that now.”
The origins of the AFFH rule
Should the AFFH delay survive, it would roll back what was the Obama administration’s attempt at giving teeth to the rule, which was actually enacted as part of the Fair Housing Act (FHA) of 1968.
Passed shortly after Dr. Martin Luther King Jr.’s death, the FHA was among the last of a wave of civil rights legislation in the 1960s, and it sought to end segregation and discrimination in home sales or rentals on the basis of race, gender, sexuality, or disability.
But the “affirmatively furthering fair housing” provision in the act went largely unenforced for half a century. It mandated that in addition to no longer discriminating and segregating protected groups, local jurisdictions had to actively look for ways to integrate. The problem with the mandate as it was originally written was that there was no real guidance on what “affirmatively furthering” fair housing meant, how it could be achieved, or how progress could be measured.
There have been attempts over the years to add structure to the rule. As HUD’s secretary under president Richard Nixon, George Romney (father of Mitt Romney) devised a plan called “Open Communities” to facilitate desegregation and integration, but did so without Nixon’s knowledge or input.
When the plan became public, it was met with fierce backlash, particularly from suburbs formed by “white flight” resulting from the Second Great Migration, during which African-Americans fled the South for the West, Midwest, and North. Nixon didn’t believe in forced integration, and the proposal was dropped.
In 1995, HUD began requiring jurisdictions complete a “Consolidated Plan.” The plan had to include a report that identified obstacles to fair housing in addition to plans for overcoming them. If a jurisdiction failed to comply, it risked HUD denying them funds from four formula block grant programs.
These rules, however, were loosely enforced and became mostly a paper exercise, as a ProPublica investigation found in 2012. Since Romney’s tenure at HUD ended in 1972, the agency only withheld funds for violating the Fair Housing Act twice.
“HUD rarely actually looked at those plans or reviewed them,” says Diane Yentel, CEO and President of the National Low Income Housing Coalition and a former HUD official. “Knowing that HUD rarely reviewed them, many communities didn’t submit them or submitted them late. It was much more of a rubber stamp process.”
But things changed in 2006 when the non-profit Anti-Discrimination Center filed a lawsuit against Westchester County, New York, alleging that the county had received more than $50 million in federal funds under the false premise that it was attempting affirmatively further fair housing.
The county, said the suit, was using the funds to build affordable housing in areas that were already segregated and impoverished. When the Obama administration took over in 2009, it settled the case against Westchester, and required the county to return $62.5 million to the federal government.
After settling the Westchester case, the Obama administration sought to encourage—and require—fair implementation of the AFFH, the implementation of which HUD is now, under the Trump administration, trying to delay.
Under Obama’s rule, an Assessment of Fair Housing (AFH) standardizes the methods and data that jurisdictions use to analyze their community’s housing. The rigorous process is meant to force communities to identify problem areas and develop solutions to them. And, unlike previous iterations, it is mandatory to complete.
The data and tools are publicly available, and the rule requires a period of public feedback intended to improve the plan. AFHs are submitted with a jurisdiction’s Consolidated Plan, which are due every five years. Failure to comply could result in denial of block grant funds, which communities have the authority to devote to a wide variety of projects, including affordable housing, redevelopment, and safety provisions, among others.
The rule took effect in 2015. Since then, just 49 of the more than 1,200 communities eligible for HUD block grant funds have submitted their AFHs because HUD staggers the deadlines for Consolidated Plans so they have time to review them, return them to the jurisdiction if they deem it insufficient, and ultimately develop a plan to address segregation in the community’s housing market.
HUD rejected roughly a third of the AFHs submitted so far as insufficient, but most were returned for simply not following the instructions for producing a Consolidated Plan and an AFH. The AFHs that were initially returned have since been corrected by the jurisdiction and accepted by HUD.
“It’s a little bit like you’re in school and you’re writing a paper that suppose to be 10 pages and you write a three page paper, or they’re suppose to cover World War II but you’re writing about World War I,” says Allen. “They didn’t follow the pretty clear instructions.”
HUD cited the returned AFH submissions when it announced its intention to delay the AFFH rule, despite the fact that the errors in them could be corrected rather simply. Carson wants to delay the AFFH rule until October 31, 2020, but Consolidated Plans and AFHs are due every five years and most jurisdictions’ next submission isn’t until after that date. So, for all practical purposes, the delay is actually until 2024.
Given this is a new process that involves data analysis, mapping tools, public feedback, and a detailed planned for combating a complicated issue, it’s only natural that there would be a few bumps in the road, but other than the wanting to delay the rule, HUD hasn’t sent any signals that it’s deploying additional resources or requesting more money to overcome the issues it has with the rule. However, Ben Carson has been vocal about his opposition to the rule in its entirety, previously calling it “experimenting with failed socialism.”
“To say that it didn’t work or that it needed more time, I don’t think the evidence is there for that,” said Vicki Been, a law professor at New York University. “Any major change is going to require some transition time, but that’s exactly why the rule is phased in. Many of those jurisdictions are incredibly happy with the result.”