HUD has become an obstacle to fair housing

Secretary Ben Carson and the U.S. Department of Housing and Urban Development (HUD) are undermining the federal government’s commitment to a just and equitable society through a pattern of removing tools that advance fair housing. Congress has an obligation to ensure that federal agencies work aggressively to fulfill their civil rights mandates, and there is an urgent need for committees with HUD oversight to hold the department and its leadership to account.

HUD’s mission is “to create strong, sustainable, inclusive communities and quality affordable homes for all.” Core to that mission are the words “for all,” and a key tool is the Fair Housing Act, part of the Civil Rights Act enacted on April 11, 1968, one week after the assassination of Dr. Martin Luther King Jr. Yet HUD is shifting its focus from inclusive communities that all can access, thereby turning its back on ending the discrimination and segregation that have prevented the realization of that vision. 

The Fair Housing Act makes it illegal to discriminate in the sale or rental of housing based on a person’s race, color, religion, sex, familial status or national origin, and HUD is charged with the law’s enforcement. The fact that such discrimination still exists, 55 years after HUD’s creation, is evident in the racially segregated communities that are all too apparent across America.

More evidence of the continuing prevalence of such discrimination may be found in Newsday’s recent investigation of real estate practices related to potential homebuyers on Long Island in New York. Ninety-three real estate agents were tested and 5,763 house listings were analyzed. The investigation found that black testers experienced disparate treatment 49 percent of the time, compared with 39 percent for Hispanics and 19 percent for Asian testers.

Nevertheless, HUD is rolling back its commitment to fair housing. As our two organizations revealed in a recent study, titled “Civil Rights Rollback,” HUD has acted deliberately to gut critical components of the enforcement infrastructure for the Fair Housing Act. Among the ways it has done so: suspending the requirements and tools instituted to effectively improve municipal planning efforts to further fair housing, and proposing to nullify the Fair Housing Act’s Discriminatory Effects Standard, also known as disparate impact, by shifting the burden of proof onto the plaintiff at every step of a disparate impact discrimination claim.

HUD recently proposed a rule that would eviscerate the Obama administration’s 2015 Affirmatively Furthering Fair Housing rule, a landmark civil rights achievement of recent years. Secretary Carson’s proposal would be one of our most significant civil rights setbacks. 

The proposed rule would not require HUD or its grantees to take affirmative steps to further fair housing. Instead, it focuses on reducing local regulations, such as green building standards, tenant protections and labor standards, that are not responsible for residential racial segregation or our housing crisis. Meanwhile, the proposal assures potentially reluctant local governments that if they do not want to change their exclusionary zoning policies — a driver of segregation and high housing costs — HUD will not make them do so.

Congress’s decision to enshrine the duty to affirmatively further fair housing in the Fair Housing Act makes clear that it is not enough for federal agencies and grantees to only respond to acts of housing discrimination. They must proactively further fair housing by stopping discrimination in all its forms and dismantling the racial segregation in housing that is the natural result of housing discrimination based on race. 

The public comment period for the proposed rule runs through March 16. The rule would redefine HUD’s fair housing requirements for its state and local government grantees, thus undercutting initiatives that advance fair housing more aggressively. HUD would:

• Remove language mandating that jurisdictions take meaningful actions to replace segregated living patterns with integrated and balanced ones, and remove language requiring that jurisdictions “take no action that is materially inconsistent with its obligation to affirmatively further fair housing.” 
• Consider only findings of discrimination by courts or administrative judges in cases brought by the federal government with regard to its oversight of a jurisdiction’s fair housing compliance. Most findings of housing discrimination result from cases brought by nonprofits or other fair housing groups, and these cases would have no weight.
• Eliminate the requirement to conduct a stand-alone fair housing plan and replace it with a requirement to create three goals to increase fair housing choice. Those goals would not need to align with the issues addressed in the Fair Housing Act or the 2015 Affirmatively Furthering Fair Housing rule.

Prior to the Fair Housing Act, the federal government overtly fostered racial segregation through discriminatory policies and practices that governed housing development and finance. The housing development, real estate and banking industries complied with federal requirements, effectively relegating blacks to segregated communities and blocking them from quality housing in well-resourced suburban neighborhoods. Housing deeds were required to prohibit the sale or rental to black Americans. 

The Fair Housing Act, therefore, was created as much to reform the federal government as the private sector. HUD would have us go back in time, and has become an obstacle to fair housing in America. 

Elaine Gross is president of ERASE Racism, a regional civil rights organization based on Long Island, N.Y.

Thomas Silverstein is counsel in the Fair Housing & Community Development Project at the Lawyers’ Committee for Civil Rights Under Law.