The 115th Congress has just gotten underway and already several of its members have launched an attack on some fundamental American values: the belief that choices about where to live should not be limited by the color of one’s skin or the country of their ancestry, and that everyone who works hard and plays by the rules should have an equal shot at access to opportunity.
Rep. Paul Gosar (R-AZ) and Sens. Mike Lee (R-UT) and Marco Rubio (R-FL) have introduced bills in their respective chambers to dismantle the Affirmatively Furthering Fair Housing (AFFH) regulation that the U.S. Department of Housing and Urban Development (HUD) adopted in 2015.
These bills would set back efforts to overcome the harm caused by housing discrimination and segregation, created in large part over many decades by government policies and practices. They would take away new tools designed to help communities better connect their residents to opportunity and fuel economic prosperity. And they would limit public access to a potentially wide array of government data on which public officials, policymakers, researchers, and citizens rely to understand and improve conditions in their communities.
It would (1) nullify the AFFH rule and any successor rule that is substantially similar; (2) prohibit the use of federal funds to “design, build, maintain, utilize or provide access to a federal database of geospatial information on community racial disparities or disparities in access to affordable housing”; and (3) set up a duplicative and seemingly meaningless process by which HUD would consult with city, county, state and public housing agency officials about how best to fulfill their fair housing obligations.
What Is This Rule They Want to Get Rid Of?
The rule that these bills want to destroy implements a provision of the Fair Housing Act, first passed by Congress in 1968. That provision requires HUD and all federal agencies with housing and urban development programs to implement them in a manner that affirmatively furthers the Fair Housing Act. The meaning of “affirmatively further” may not be obvious to the average reader, but the legislative history and court decisions provide great clarity. They tell us that it is not enough for HUD (and by extension, other federal agencies) to simply refrain from discriminating itself. Rather, HUD must use its programs to help end discrimination and racial segregation that limit opportunity and create truly open housing markets.
The 2015 rule replaces an earlier version that was viewed as weak and ineffective not only by fair housing advocates, but by the cities, counties, and states to which it applied. Those jurisdictions asked HUD to provide clearer guidance on how to fulfill that affirmative fair housing obligation that they take on when they accept federal funds. The Government Accountability Office also raised concerns in 2010 about that earlier rule’s effectiveness and recommended that HUD adopt a new rule that would set out a timeline and format for its grantees to conduct fair housing planning and have those plans submitted to HUD for review. This is exactly what the 2015 rule does.
The 2015 rule also responds to HUD grantees’ desire for more clarity. It clarifies that affirmatively further fair housing means “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.”
It then lays out a framework for analyzing where people live to determine what meaningful actions can be taken to overcome segregation and expand access to opportunity. The historical policies that created segregation may be common across communities, but the specific steps needed to overcome that legacy will vary from place to place. The rule provides a structure for evaluating the current contours of that legacy while preserving flexibility for local decisions about what actions could be taken in each community. This framework takes the guesswork out of the analysis without dictating solutions.
Been There, Done That
As for the provisions of the new bills being introduced that require consultation with public officials, HUD has already been there and done that. Before developing the rule, HUD conducted a listening tour and gathered input from elected officials, housing and community development agency staff, public housing authorities, and community stakeholders in jurisdictions both large and small and in all regions of the country. The feedback gathered during this tour informed HUD’s efforts in designing the rule, and both the rule itself and all of the accompanying tools have undergone extensive public comment.
The consultation process laid out in these anti-fair-housing bills is not only duplicative of HUD’s earlier efforts, it’s a dead end. It details the types of officials (but not community stakeholders) with whom HUD must consult about how best to accomplish the objectives of the Fair Housing Act. It then requires HUD to publish a report, also subject to public comment, describing recommendations on areas of consensus and disagreement. One might think this was intended to lay the groundwork for a new AFFH regulation were it not for the provision in the bills prohibiting HUD from issuing any similar rule. This is a classic exercise in wheel spinning.
The bills would also deal a devastating blow to public access to federal data on racial segregation or disparities in access to affordable housing.
HUD has assembled a useful, detailed set of information on demographics and housing (plus some data on school performance, employment, environmental quality, and transportation access) and paired that up with a mapping tool that lets communities see how access to various types of opportunity plays out across neighborhoods and across the region.
These resources are a goldmine for communities, putting in their hands many types of crucial data and the tools to understand that data–which might otherwise take them weeks or months to assemble, organize, and analyze on their own–instantly and at no cost. This data infrastructure is of particular value to small local governments with limited staff and little capacity to do this kind of data analysis without the resources that HUD has provided. It is also of tremendous value to community organizations, allowing them to analyze the issues that matter most to them. The bills would dismantle this database.
Further, the language in the proposed bill is written so broadly as to call into question the future of other federal datasets, such as the Home Mortgage Disclosure Act (HMDA) or any other federal database that is coded by location and includes information about race or affordable housing. This provision is setting off alarm bells—and rightly so—across many different fields in which federal data plays an important role in setting policy and designing and evaluating programs.
It also appears to be a backdoor approach to fending off use of the disparate impact theory, which the Supreme Court firmly upheld in the 2015 decision in the Texas Department of Housing & Community Affairs v. Inclusive Communities Project (ICP) case. That decision held that it is not necessary to show intent in housing discrimination cases. Rather, unjustified policies and practices with a disparate, negative impact on members of protected classes could also violate the Fair Housing Act. Disparate impact cases typically rely on the use of statistical data. However, if the necessary data are not available, those cases are much more difficult to bring.
The regulation supporting affirmatively furthering fair housing is based on the simple reality that where you live matters. It determines where your kids go to school, what kinds of jobs you have access to and what kinds of transportation is available to you, whether you can shop at a grocery store that sells healthy foods, whether you breathe clean air and drink clean water, and many other factors that affect your access to opportunity and your trajectory in life. When we look at our communities, we see both significant segregation based on race and national origin, and big disparities in the kinds of opportunities available to the residents of different neighborhoods.
During the presidential campaign, then-candidate Donald Trump, in his own unique way, talked about eliminating these disparities. Ben Carson, Trump’s pick for Secretary of Housing and Urban Development, did much the same in his confirmation hearing, and also talked about the importance of basing policy decisions on data. The AFFH rule, the data assembled to go along with it, and a host of other federal databases are important tools for tackling the problems in high-poverty, heavily segregated communities, making more strategic use of housing and community development resources, and promoting more equitable economic prosperity across all communities.
We should be deploying these tools to maximum effect, not eviscerating them, as the bills introduced by Rep. Gosar and Sens. Lee and Rubio would do. These bills will set back our efforts to give everyone in this country a fair shot at access to opportunity. They should not be enacted, and stopping them will require people who care about ending housing discrimination, expanding access to opportunity, and preserving public access to government data to make their voices heard in the debate.