The Trump administration abruptly terminated a key fair housing regulation last week that required states and cities to reduce historic patterns of housing segregation. This rule change will allow local governments to continue policies that restrict housing choice for low-income and minority renters.
The rule being targeted promotes Affirmatively Furthering Fair Housing (AFFH). This requires that local governments actively address historic patterns of segregation and discrimination.
Under the Obama-era 2015 rule, local governments have to analyze housing segregation in their communities. They must also submit a plan that includes concrete actions to remove discriminatory policies and reduce housing segregation. These actions can include revising zoning ordinances, building codes, the permit process, or many other options. If HUD rules a plan is not acceptable, the local government must revise it or risk losing all HUD funding. The rule applies to 1,200 local jurisdictions around the country.
The final rule announced by HUD is called “Preserving Community and Neighborhood Choice.” Local governments no longer have to prepare a study of segregation patterns and submit a detailed plan to deal with the problems. Instead, local jurisdictions self-certify that they are taking actions that “affirmatively furthering fair housing.” To be in compliance, they only need to certify that they are taking “any action above what is required by statute related to promoting any of the attributes of fair housing.”
The rule goes on to define fair housing attributes very broadly. According to the rule, fair housing is affordable, safe, decent, free of unlawful discrimination, and accessible under civil rights laws. A state or local government can say it is affirmatively furthering fair housing if it supports activities that promote any of those qualities.
In the press release announcing the final rule, HUD Secretary Ben Carson said that the old requirements were “unworkable and ultimately a waste of time for localities to comply with.” He also said the regulation would ensure local governments are free from federal oversight, saying “Washington has no business dictating what is best to meet your local community’s unique needs.”
Critics charge that this is not really a fair housing rule at all. The Fair Housing Act bans housing discrimination on the basis of race, color, national origin, sex, familial status, disability, or religion. The rule treats “affordable housing” activities the same as policies to help classes protected under the Fair Housing Act. It does not require local governments to set concrete goals for ending segregation. And worse, it relies on the certification of the very local governments that have promoted housing discrimination for decades.
Within days of HUD announcing the move, President Trump stirred up controversy when he tweeted the change would help keep poor and minority renters from destroying the suburbs.
President Trump has made it clear that this change is not being done just to make it easy on local governments. A few days after the rule change announcement, Trump appealed to suburban racial and class fears.
“I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing in your neighborhood. Your housing prices will go up based on the market, and crime will go down. I have rescinded the Obama-Biden AFFH Rule. Enjoy!”
President Trump’s tweet about the new Preserving Community and Neighborhood Choice final rule; July 29, 2020.
Trump also made the same divisive appeals to white suburban voters in earlier tweets and statements. Promoting an opinion piece in the New York Post, the president wrote last month that, “The Suburban Housewives of America must read this article. Biden will destroy your neighborhood and your American Dream. I will preserve it, and make it even better!”
And President Trump continued his effort to spread fear among suburban voters when speaking at a tele-rally a few days later. He said that Joe Biden’s housing plan would destroy suburban life by bringing in new affordable housing: “The want to abolish – and really hurt – the suburbs, because under their plan…they don’t mind if low income housing is built in…a beautiful suburb.”
It was also unusual that President Trump took a direct role in shaping the final rule. The Preamble to the rule notes that the president reviewed HUD Secretary Carson’s original AFFH proposal. It says the “president expressed concern that the HUD approach did not go far enough.” The president asked HUD to rewrite the rule and “reduce the regulatory burden of providing unnecessary data to HUD.”
The Trump administration has been laying the groundwork to gut these fair housing requirements for a couple of years. In 2018, Secretary Carson delayed implementing the 2015 AFFH rule. He said it was because HUD needed to review if the data collection required would be a burden to local governments. And when HUD first proposed the replacement rule in January this year, it was widely criticized by fair housing and civil rights advocates for reducing the accountability of local governments.
Because HUD published Preserving Community and Neighborhood Choice as a final rule, there will not be a public comment period. Fair housing advocates say this is a very different rule from what HUD proposed last year. This means the new rule should go through the regular public comment process before it can be put in place. There are likely to be legal challenges to the new rule soon.
What are the consequences if legal challenges fail and the new rule takes effect? It means that cities with a history of segregation will get a free pass, as long as they can show some minimal effort. It means that minority renters will continue to have limited housing choices. It means that many neighborhoods will remain segregated, as will schools and job opportunities.
Fortunately, the suburbs have evolved over the decades. Today’s suburbs are more economically and racially diverse than the Leave it to Beaver 1950s fantasy world Trump envisions. More women are in the workforce and have college degrees. More suburban households need two wage earners to make ends meet. More low-income renters have moved into suburbs seeking better schools and jobs. And the suburbs have not been immune to the pain from the Great Recession of 2008 and current pandemic.
It is bad enough Trump is gutting fair housing rules that would provide more housing choice for low-income and minority renters. But it is outrageous that he is using this as part of his re-election strategy of fanning racial tension. Suburban voters, especially women, began turning against Trump in the 2018 midterm elections. This was a big part of the Democrats taking over the House of Representatives.
This rule change is not about taking a burden off of local government. Trump is banking his election hopes on middle-class white women being more afraid of black and brown neighbors than dying in the pandemic or watching the economy crash.