On January 7, 2020, the Trump administration launched another attack on integration. The Department of Housing and Urban Development (HUD) announced a new federal rule that would significantly redefine and roll back Obama-era regulations that were intended to attack the long-standing and unaddressed problem of residential racial segregation.
The rule would redefine the duty to “affirmatively further fair housing” in ways that belie decades of settled jurisprudence and undermine the legislative intent of the federal Fair Housing Act.
The phrase “ affirmatively further fair housing ” originates in two sections of the Fair Housing Act of 1968. The first section requires HUD to “administer the programs and activities relating to housing and urban development in a manner to affirmatively further the policies of this title.”
The second mention imposes an almost identically- worded obligation on other federal departments and agencies. Unfortunately, the Act did not define what that phrase meant. That job was left to the courts. In the 1970s, federal courts began to interpret that phrase, culminating in a Supreme Court determination that, based on the legislative history, the goal was to achieve “truly integrated and balanced living patterns.”
In President Obama's first term, HUD began drafting a rule that would define this phrase in federal administrative law, culminating in the release of the final rule in 2015. That rule defined affirmatively furthering fair housing as: “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” This expansive definition, explicitly addressing segregation, is under attack.
The proposed rule released by HUD would completely omit any reference to segregation, integration, or racial composition or concentration. Instead, it would redefine fair housing in terms of the absence of conscious discrimination and the presence of affordable housing. To achieve affordable housing, the proposed rule may be used to attack local regulation.
While affordable housing is a very important policy goal, it is not the same thing as fair housing or affirmatively furthering fair housing. The term “fair housing” arose as part of the open housing movement in the middle decades of the twentieth century. This movement sought to open exclusionary white communities to non-white residents. It was a movement that existed in places as diverse as New Orleans to Detroit. In its investigation of the urban rebellions of the 1960s, the Kerner Commission recommended that the federal government enact a “national, comprehensive and enforceable open-occupancy law.” This recommendation came to fruition with the enactment of the federal Fair Housing Act a few months later.
The Kerner Commission also recommended massive production and subsidies for housing for low- and moderate-income families to the tune of 6 million units over five years. It also recommended rent supplements, expanding below-market interest rate programs for affordable housing developers, and federal write-downs of interest rates on market rate loans to private developers for moderate-rent housing. In addition, the Commission called for more federal public housing.
Although the Kerner Commission was focused on the problems of racial inequality in American society, it understood that affordable housing policies and fair housing policies were not the same thing, even as it recommended both. Affordable housing policies, which provide much needed below-market rate housing to the public, can advance the goals of integration, by making it possible for lower income families of color to move into more affluent , primarily white neighborhoods. But it is also possible to implement affordable housing in ways that either fail to achieve fair housing goals or undermine them.
Indeed, this was one of the lessons of New Jersey’s Fair Share Act . By simply requiring jurisdictions to build affordable housing in every jurisdiction instead of proactively integrating, jurisdictions built and marketed their “fair share” quota to elderly residents, and therefore avoided building affordable housing for low-income families of color. One could predict that, even if it is successful, the revised AFFH rule proposed by the Trump administration, by untethering AFFH from integration, could actually undermine that goal by simply focusing on economic segregation. It could make racial segregation worse.
This attack on integration comes just months after the proposed roll-back of another Obama-era rule. In August, 2019, HUD proposed a radical redefinition of the "disparate impact" framework.’ As I noted at the time , one of the key changes to the definition of "discriminatory effects" is to eliminate "the perpetuation of segregation" as such an effect. That means that evidence that a law or policy causes the perpetuation of segregation would no longer qualify as a "discriminatory effect."
In less than six months, the Trump administration has waged an attack on racial residential integration. We must challenge and resist these efforts, but to do so, we first have to keep in mind that affordable housing and fair housing are not the same thing. Yes, we need affordable housing, but we also need fair housing. And we can’t achieve the latter by simply creating the former.