WASHINGTON — Even before he was appointed secretary of the Department of Housing and Urban Development, Ben Carson called President Barack Obama’s 2015 rule requiring communities to comply with fair housing obligations by submitting plans a “failed socialist experiment” and a “mandated social engineering scheme.”

In January 2018, 10 months after taking office, Carson suspended implementation of Obama’s rule. Just last month, Carson scrapped the 2015 Obama rule in his proposal. Instead, his proposal essentially focuses on eliminating barriers to creating more affordable housing, while eliminating an assessment tool used by localities to measure segregation. Advocates are concerned the proposal could scale back the agency’s role in directing jurisdictions to effectively comply with their obligations.

Affirmatively Furthering Fair Housing is a legal requirement that federal agencies and grantees must further the provisions of the 1968 Fair Housing Act through ensuring that jurisdictions are taking steps to address the decades’ worth of discrimination and segregation patterns. After a 2010 Government Accountability Office audit found HUD’s implementation of the AFFH mandate to be ineffective, Obama’s administration issued a new rule that put in a process and tools for localities to comply with fair housing obligations and to submit plans to HUD.

Fair housing policy groups say they are concerned that the Trump administration’s proposal reverts the functions of the AFFH mandate back to a time when no plans were required by HUD and jurisdictions were confused on how they should comply. During this time, few actions were taken.

The Obama-era rule

Debby Goldberg, housing policy director for the National Fair Housing Alliance, said HUD “did nothing” to address AFFH until 1994 when it required jurisdictions receiving federal funds to analyze impediments to fair housing and actions to overcome them. But Goldberg said that rule had no prescribed guidelines, standards, or format on how to do so.

Ed Gramlich, a housing policy adviser at the National Low Income Housing Coalition, said jurisdictions had to analyze impediments to fair housing choice in their communities, but these reports were often not well-written or “just sat on a shelf because the community didn’t even know they existed.”

But the Obama rule in 2015 mandated the reports be submitted and started a process. Once HUD reviewed the reports, the agency engaged in a “back-and-forth, iterative process” with jurisdictions to create plans.

Heather Abraham, a Georgetown University law professor, said Carson’s proposed rule reverts implementation of the AFFH mandate back to its “defective” analysis of impediments process of the 1990s.

HUD’s new proposal

Fair housing advocates are concerned that HUD’s new proposal redefines how jurisdictions would be required to enforce fair housing in a way that reduces burdens on them to meet obligations.

Instead of obligating jurisdictions to further fair housing, Gustavo Velasquez, the assistant secretary for fair housing during Obama’s administration, said they now would have discretion.

“Being obligated to do something and giving someone the discretion to do something, those are two very different things,” Velasquez said. “It will just be detrimental for people who are confined to live in these high-poverty, racially segregated communities.”

Specifically, the proposal scraps an assessment tool from the 2015 rule used by localities to map segregation patterns and catalogue practices that exacerbate segregation. While HUD suspended the tool in May 2018, the new proposal would permanently terminate its use.

Abraham said “that process of identifying what is wrong with their community is absolutely necessary to get it right. They have to know where their biggest challenges are.”

The new rule would mean “going back to a period where local jurisdictions essentially will be policing themselves,” said Renee Williams, a lawyer for the National Housing Law Project.. “Under the new rule, there isn’t really a plan that’s being produced. That’s going to signal to jurisdictions that HUD’s not really necessarily going to be looking at fair housing issues critically.”

Jurisdictions have varied widely on their inclination to comply with AFFH obligations. Goldberg said some jurisdictions have declined HUD money rather than complying with their obligations.

For example, after the promulgation of the 2015 rule, Douglas County in Colorado told HUD it didn’t want the agency’s money, Velasquez said.

“Why? Because if they don’t take the money, they don’t have to comply with the obligations of the 1968 Fair Housing Act,” Velasquez said.

Abraham said the proposal does not put the process in place that will create a compliance expectation.

She said the proposal likely scraps this process for a couple of reasons: One, the administration “ideologically doesn’t want the federal government involved in this process;” and two, the administration prioritizes using the market to drive outcomes.

The Language

Fair housing advocates also said the proposed rule’s language and changes in key definitions work to incentivize affordable housing, but undermine the mandate’s original purpose.

To allow for fair housing choice, the rule’s language emphasizes increasing affordable housing. The proposal’s section on affordable housing says fair housing choice “requires not only the absence of discrimination, but the existence of realistic housing options.”

Abraham is concerned that the proposed rule redefines fair housing choice to focus more on “choice within one’s means,” while considerably downplaying the “race-conscious elements” of the existing rule. Instead, she said the emphasis should be on the absence of discrimination and therefore equal opportunity.

“That seems to be driving a desire to take away race-conscious, or race-considered, processes and just trust the market to build more affordable housing,” she said. “The current, proposed rule strikes out race considerations in a way that is totally inappropriate in the context of an affirmatively furthering fair housing rule in the Fair Housing Act. It just seems to miss the point.”

Segregation was mentioned twice in the proposal’s 84-page text. It was used 109 times in the 2015 final rule.

Public comments on the proposed rule will be taken until March 16. After that, a final rule will be written.

Published in conjunction with Sojourners