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New Trump rule could repeal Obama effort to promote housing desegregation

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A proposed change to the Affirmatively Furthering Fair Housing rule has heightened debates over the best way to promote housing equity

Two cranes swing overhead at an apartment building construction site.
A proposed rule change expected to be unveiled this week by HUD would change the way federal money is used to build low- and moderate-income housing across the country.

Federal efforts to encourage cities and local governments to reduce housing in low- and middle-income neighborhoods in a way that promoted equity and equality could be in danger, according to some housing advocates, who have warned that a proposed rule change published today by the Department of Housing and Urban Development (HUD) could weaken Obama-era efforts to reduce segregation.

The rule in question, Affirmatively Furthering Fair Housing (AFFH), was put in place in 2015 to strengthen the Fair Housing Act of 1968. One of the nation’s landmark housing laws, the Fair Housing Act banned de facto racial discrimination in housing, and further required that any municipality that receives HUD funding must “affirmatively further” fair housing—but the definition of that term has been left to each HUD secretary to define.

Obama’s measure required recipients of Community Development Block Grant money, a funding source used by over 1,300 municipalities across the nation, to engage in a formal review process to make sure new developments weren’t contributing to segregation, and then create their own fair housing goals. But it was never fully implemented before being blocked by the Trump administration, which is now aiming to issue its own rules.

Advocates, such as the National Low-Income Housing Coalition (NLIHC), have said the proposed rule “represents a complete retreat from efforts to undo historic, government-driven patterns of housing discrimination and segregation throughout the U.S.”

“What HUD has released is not a rule to affirmatively further fair housing,” said Lisa Rice, president and CEO of the National Fair Housing Alliance. “It significantly weakens fair housing compliance, entrenches segregated housing patterns, and continues the status quo in which some communities are strengthened by taxpayer-supported programs and amenities while other neighborhoods are starved and deprived of opportunities. At a time when housing discrimination has reached record highs, we need stronger enforcement of the Fair Housing Act instead of these continuous attacks by the Trump administration. Weakening the AFFH mandate gives cities and public housing authorities a free pass on discrimination.”

The rule has divided housing advocates along ideological lines. Many progressives support the original AFFH rule’s focus on reversing segregation by using local and regional data on housing patterns to promote fair housing. Localities would ideally use the required information on race, poverty, and access to education and employment when planning new housing construction. As Obama’s HUD previously argued, it was important “to take meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.”

Conservatives argue that abiding by the 2015 rule’s information-gathering process imposes unnecessary burdens on development—some have even called it a form of social engineering—that makes it harder to build more units, impeding the natural market response to a shortage of new homes and high housing costs. In 2018, Secretary Carson said that the threat of AFFH’s regulatory burden was “suffocating investment in some of our most distressed neighborhoods that need our investment the most.”

Carson has long focused on undoing the AFFH. He previously delayed implementation of the rule, and eventually overcame a court challenge by housing advocates trying to force him to implement it as written.

The NLIHC, in a statement, said “Secretary Carson has suggested in the past that he would use the AFFH rule to lessen restrictive zoning practices that inhibit affordable housing production in certain communities, an important goal given the deep racial disparities created by some local zoning laws. But he fails in this regard as well, choosing to instead let localities off the hook by explicitly stating there will be no consequences if they keep their restrictive zoning laws.”

Peggy Bailey, the vice president for housing policy at the liberal Center on Budget and Policy Priorities, told the New York Times that if Carson’s proposed rule change stands, “ongoing housing discrimination and segregation will likely continue to be swept under the rug and HUD resources will do far less to reduce segregation and expand housing opportunities.”

“It’s shameful that at a time when housing discrimination is still rampant, President Trump and Secretary Carson continue to try to gut foundational civil rights laws like the Fair Housing Act,” said Senator Elizabeth Warren in a statement. “This new proposal is a major retreat in the Federal Government’s efforts to confront its history of discrimination and reverse that legacy so that all families, across all communities, have access to the resources they need to succeed.”

Emily Hamilton and Salim Furth at the libertarian Mercatus Center have a different take. They believe the change will be a positive step forward, replacing extra paperwork and “bureaucratic symbolism” with a way to rank jurisdictions on how they’re succeeding or failing in allowing housing markets to serve residents.

“The fact that HUD is putting the enforcement process into writing does suggest that they’d like to be more aggressive than the agency has historically been,” Furth wrote in an email to Curbed. “We already saw that with Los Angeles, where HUD played hardball to resolve a decade-old complaint about below-standard construction.”

The renewed debate over the AFFH and the ways that zoning and local policy can affect housing affordability and segregation comes as states and cities across the country are debating local housing laws. A Virginia state legislator last month introduced a slate of housing proposals that would effectively ban single-family zoning statewide, arguing in part that doing so would decrease residential segregation and increase economic opportunity, following in the footsteps of similar legislation in Minneapolis and Oregon.

Housing discrimination complaints have also gone up in recent years; a report released in November by the National Fair Housing Alliance found that in 2018, the nation saw an 8 percent year-to-year increase in fair housing cases, an indication of what the advocacy group calls an “unprecedented attack” on fair housing by the Trump administration.