3 Ways HUD Is Using Regulatory Attacks to Dismantle Fair Housing Protections

More than 50 years after the passage of the Fair Housing Act (FHA), the ultimate goal of the law—to eliminate all forms of housing discrimination and end residential segregation—is still far from reach. Residential segregation persists among African American home mortgage borrowers, whose neighborhoods also experience racial disparities in home appreciation. Renters of color continue to struggle in the face of increasingly high rents. People with disabilities, people of color, and LGBTQ people are all more likely than others to experience housing discrimination. And communities of color and historically redlined neighborhoods continue to face similar patterns of segregation and disinvestment. Study after study shows that where someone lives has an enormous impact on their social and economic well-being. The issue isn’t that neighborhoods themselves are inherently bad places to live, but rather that a long history of racist policy and disinvestment has made them that way, dictating access to quality health care, schools, jobs, and more.

As America’s housing crisis worsens, the U.S. Department of Housing and Urban Development (HUD) has a responsibility to actively enforce fair housing protections; unfortunately, under the Trump administration, the agency is instead using its regulatory power to roll back policies intended to protect people from discrimination based on their race, disability status, nation of origin, or other protected class.

For example, in May 2019, a year after the U.S. Department of Homeland Security’s own immoral family separation policy, HUD proposed a rule that would effectively force mixed- immigration-status families to choose between two impossible options: separation and potential eviction. Later that year, the agency proposed a drastic change that would make it nearly impossible for victims of housing discrimination to successfully argue the disparate impact theory in court, which proposes that discrimination can be determined by a policy’s outcomes, not just its intentions. And just this month, HUD announced yet another regulatory attack that would completely gut enforcement of a vital rule designed to correct historic residential segregation.

This column outlines how these three rules would weaken protections for individuals and families who face unjust barriers to safe and fair housing. For each proposed change, the Center for American Progress has linked to detailed comment letters that it submitted to formally oppose the Trump administration’s proposed actions.

Proposed “mixed-status” rule targets housing access for immigrant families

Under current law, families with at least one U.S. citizen or “eligible” immigrant can live in federally subsidized housing, and only family members applying for assistance are subject to verification of their immigration status. For “mixed-status” families—in which at least one family member is undocumented or otherwise ineligible for federal housing assistance due to their immigration status—the amount of assistance they receive is adjusted based on the number of eligible members. These families are overwhelmingly people of color, and 85 percent identify as Latinx.

Despite already offering mixed-status families only prorated assistance, HUD’s proposed rule would ultimately eliminate assistance for them completely. This means that mixed-status families, including those with children, would be unable to qualify for public housing, housing choice vouchers, and other forms of housing subsidy that help them keep a roof over their heads. Under the proposed rule, if a member of a family were found to be ineligible, the family would either be evicted from their subsidized home or forced to split up in order to continue receiving vital housing assistance. For the 25,000 mixed-status households currently receiving federal housing assistance, this is a cruel choice—and one they face only because of deliberately devastating policy decisions made by Secretary of Housing and Urban Development Ben Carson. As a direct result of the proposal, approximately 108,000 people—55,000 of whom are children—would be at risk of evictions and homelessness, even though the majority of these individuals are citizens or legal residents according to the agency’s regulatory impact analysis.

The rule would also impose harmful and burdensome documentation requirements on all recipients of housing assistance, a move that would particularly affect low-income individuals, the elderly, and people of color, all of whom are less likely to have proof of citizenship or a government-issued photo ID.

Proposed disparate impact rule undercuts critical legal tool for proving discrimination

In 2013, after years of legal precedent, an Obama-era rule formalized the understanding that “disparate impact” was a valid argument to prove discrimination under the FHA. The disparate impact legal doctrine recognizes that policies and laws that seem nondiscriminatory on the surface can disproportionately harm people of color or members of protected classes generally, even if there is no explicit intent to discriminate. HUD’s standardization of reasonable criteria to assess disparate impact was a significant step toward the creation of a fair and integrated housing market.

Recently, however, HUD proposed a rule that would change those updated criteria and place an even higher burden of proof on those claiming discrimination through disparate impact. Rather than the three-part process currently in place, the new rule would instate a five-part test that would require the victim to provide full evidence that the policy they are contesting is unnecessary; on top of this, they would also need to prove a “robust causal link” between the policy and the discrimination they experienced—all before a case can even proceed to the discovery phase. The rule would also acknowledge algorithmic and statistical biases, not by strengthening oversight to ensure that banks, insurance companies, and landlords who use discriminatory algorithms are held accountable, but by shielding them from responsibility. This almost insurmountable burden of proof would make it even harder for victims of housing discrimination to get the restitution they deserve while allowing perpetrators to escape accountability.

Repeated attacks on vital fair housing rule weaken enforcement of the FHA

One of the key provisions of the Fair Housing Act of 1968 was the requirement that HUD work to “affirmatively further” fair housing. This mandate means that it is not enough for HUD to simply administer programs and address claims of discriminations; the agency has a responsibility to actively reverse decades of government-sponsored segregation and discrimination. However, a comprehensive framework to fulfill that requirement was only enacted in 2015, almost 50 years after the passage of the law. The Affirmatively Furthering Fair Housing (AFFH) rule requires any jurisdiction receiving federal funding, including Community Development Block Grants, to analyze patterns and causes of residential segregation in their locality and create an actionable plan to correct those disparities.

But under the leadership of Secretary Carson, HUD has spent the past three years systematically dismantling any and all progress made on AFFH.* In January 2018, HUD delayed deadlines for most local governments to submit their assessments of fair housing. That same year, in May, the agency withdrew the assessment tool that local governments were required to use to submit their plans and indefinitely suspended all implementation of the AFFH rule, despite evidence that both the tool and the new, more rigorous criteria for assessment were working to strengthen plans as intended. Then, in August, HUD asked for public comments on whether the AFFH rule should be “streamline[d]” for efficiency, claiming that it had proven ineffective—a conclusion the agency reached after reviewing only 49 initial submissions out of 1,200 jurisdictions that would have eventually gone through the AFFH process.

Now, the agency is announcing that it plans to gut the AFFH rule completely, proposing an entirely new version that conflates affordable housing with fair housing. The Obama-era definition of “affirmatively furthering fair housing” makes explicit mention of integration, concentration of poverty, and civil rights and emphasizes that localities are expected to take meaningful action to address disparities. The newly proposed definition, however, would be stripped of that language and instead evaluate jurisdictions based on three criteria: (1) whether they are free of legally proven cases of housing discrimination, cases that would be much harder to prove if the disparate impact rule were finalized; (2) whether there is an adequate supply of affordable housing throughout the region; and (3) whether that housing is of adequate quality. That might seem reasonable on the surface, but the new definition displays a clear disregard for a fair housing law that was created to address all barriers to housing, not just cost. Ultimately, it doesn’t matter if people can afford housing if systemic discrimination prevents them from accessing it.

Conclusion

The residential segregation of today is a direct consequence of decades of deliberate policy choices made by every level of U.S. government. The Trump administration’s regulatory attacks on critical protections are an embarrassing extension of that legacy. If HUD were serious about using housing policy to promote further integration and equal opportunity, it would work to strengthen enforcement of fair housing protections and ensure that families are able to stay together in safe homes free of fear and discrimination. Instead, the agency is using its considerable resources to once again promote policy that will only serve to entrench segregation of and discrimination against marginalized communities.

Areeba Haider is a research assistant for the Poverty to Prosperity Program at the Center for American Progress.

*Author’s note: There is still time to speak out against HUD’s drastic changes to the definition of “affirmatively furthering fair housing.” Submit a public comment by March 16 to make sure your voice is heard.