HUD withdraws anti-segregation tool, gets sued again

A collection of civil rights groups amended a lawsuit against the Department of Housing and Urban Development (HUD) on Wednesday to include the agency’s latest attempt to derail an Obama-era anti-segregation measure, a sign that neither side in the dispute plans to back down.

The timeline for the latest move began in January when HUD announced its intention to delay the Affirmatively Furthering Fair Housing (AFFH) rule, which was meant to give teeth to a provision in the Fair Housing Act of 1968 that went largely ignored for 40 years. The rule mandated that jurisdictions identify obstacles to fair housing and submit plans to overcome them, or risk losing HUD funding.

Civil groups sued HUD for the delay on May 8, claiming the move violated the Administrative Procedure Act (APA). Foreseeing a court defeat, HUD announced it was withdrawing the delay on May 18, but also announced it was removing online access to a tool local jurisdictions need to comply with the AFFH rule.

The amended lawsuit filed Wednesday revises the plaintiff’s language to take into account that HUD has withdrawn the delay and instead removed the online tool, a means to the same end—delay of the rule. The suit claims the move is still in violation of the APA.

“It’s the same result; it’s just a different means of circumventing the rule,” said Lisa Rice, president and CEO of the National Fair Housing Alliance, a plaintiff in the case against HUD.

The APA, which dictates how the federal government and its agencies propose and pass new regulations, has been a foil for HUD since Ben Carson took over as secretary following the election of Donald Trump. Carson tried to delay another Obama-era anti-segregation measure, the Small Area Fair Market Rent Rule, and was sued for violating the APA. HUD and Carson lost the suit and ultimately withdrew the delay.

With this precedent, it’s hard to imagine that HUD and Carson don’t know that their latest moves violate the APA. But following the APA would lead to a long process, during which local jurisdictions might begin implementing the AFFH rule. By gumming up the process with moves designed to delay, HUD achieves just that, even if the move is ultimately shot down in court.

The AFFH rule sought to finally realize the provision of the Fair Housing Act that mandated jurisdictions not only discontinue discriminatory and segregation in housing, but also actively look for ways to integrate. But there was little formal guidance in the law for how to “affirmatively further fair housing,” and the few attempts to add structure to it over the years were either beaten back or watered down.

Under the Obama administration, HUD implemented the AFFH rule, which ordered the more than 1,200 local jurisdictions that receive money from HUD under the Community Development Block Grant (CDBG) program to complete an Assessment of Fair Housing (AFH). Failure to do so would result in the jurisdiction getting denied CDBG money.

The AFH required communities to use data and tools provided by HUD to identify segregated areas and propose plans to combat it. The tool HUD removed is a 100-page questionnaire that guides local communities and jurisdictions through an analysis of its housing to unearth and ultimately correct segregation issues.

When HUD announced its intention to delay the AFFH rule, only 49 jurisdictions had submitted their AFH. New Orleans’s submission took six months to complete. Roughly a third of those original submissions were rejected by HUD as insufficient, although many of those were rejected because the community simply didn’t follow the AFH’s instruction. Advocates for the rule say that a back-and-forth process between HUD and the jurisdiction is precisely what was intended.

Carson used the rejections as a rationale for the original delay of the AFFH rule, claiming communities needed more time and resources to complete them. Removing the tools needed to complete the AFH seems to contradict this rationale though. By removing the online tool needed to complete the AFH, it’s hard to argue communities need more resources at the same time the existing resources are being taken away.