Fair Housing Is Still the Law, Even if Trump Refuses to Enforce It

Repudiating the requirement to affirmatively further fair housing is another example of this administration’s race baiting and disregard for both the spirit and the letter of the law.

Photo by Arvell Dorsey Jr. via flickr, CC by 2.0

In 1968, just a week after the assassination of Martin Luther King Jr., the nation finally, belatedly, enacted the Fair Housing Act. It was a crucial part of the Civil Rights Act of 1968, and a symbol of a country trying to move forward and do better.

One of the requirements of that law is that the secretary of HUD must administer all programs and funds to do with housing and urban development “in a manner to affirmatively further the policies of this title”—i.e. fair housing.

Affirmatively means proactively. It means not hanging back and waiting until someone realizes they have been discriminated against (which, as the recent Newsday investigation on real estate agent discrimination showed, can be very hard to tell for sure without knowing how others are being treated, even when discrimination is rampant) and has the wherewithal to make a complaint and follow it through. It means not ignoring the fact that seemingly neutral rules and regulations can reinforce longstanding patterns of discrimination. It means knowing that when entrenched segregation currently exists, things will have to change to achieve the mandate Congress set forth 50 years ago.

It took a very long time for HUD to come up with the most recent set of policies that laid out how the department would ensure that this part of the law was followed. Long after some false starts in the 1990s, the Obama administration conducted a thorough process that began in 2009 with a gathering of 600 civil rights and fair housing leaders and culminated in a final rule in 2015.  

There are many such programs and funds used by many local jurisdictions that are subject to the affirmatively furthering fair housing (AFFH) requirement. In fact, they aren’t even limited to funds administered by HUD, though that is the focus. So enforcing this provision properly takes many moving parts. For many of my years at Shelterforce it was de rigueur to hear from HUD that the AFFH regs were “almost done.” This wasn’t because of avoidance though. The work put in on them was serious and thoughtful. (They did generate some concern from people who actually support fair housing too, as would be expected from any undertaking this complex. But even through that lens, the overturning of the regulations entirely has been quite the baby-out-with-the-bathwater moment.)

It should come as no surprise that the Trump administration decided to avoid the regular rulemaking process in order to first suspend and then, recently replace, those affirmative, proactive fair housing policies with something that is completely contrary to the spirit of the original law. The replacement rule, according to a writeup from the National Low Income Housing Coalition, defines “fair housing” to mean “housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible as required under civil rights laws.” And defines “affirmatively further” to mean “to take any action rationally related to promoting any attribute or attributes of fair housing” (emphasis added). States, local governments, and public housing agencies receiving HUD funds must certify that they are affirmatively furthering fair housing, but such certification “is sufficient if the program participant takes any action that is rationally related to promoting one or more attributes of fair housing.” In other words, no one is pretending this is anything other than window dressing.

And in case anyone missed the motivation behind it, Trump was kind enough to tweet it out.

affirmatively furthering fair housing; image of tweet

(This is, of course, not factually grounded in any way. Affordable housing doesn’t affect nearby property values.)

Dozens of civil rights groups have rightly condemned both the gutting of the enforcement mechanism and the inflammatory rhetoric that has accompanied it. Repudiating the requirement to affirmatively further fair housing is another example of this administration’s widespread race baiting and disregard for both the spirit and the letter of the law.

It seems likely that it will be up to the next administration to recommit to policies that fully enforce the Fair Housing Act. But even without proactive enforcement mechanisms in place, let’s remember that it is in fact still the law that those using federal funds for housing must use them in a way that will affirmatively further fair housing.

Learn more about AFFH, its importance, and the attacks on it:

Affirmatively Dismantling Fair Housing

HUD Secretary Asks America to Accept Housing Segregation

What Could a Joe Biden Presidency Accomplish on Affordable Housing?

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