Opinion: Setting the Record Straight on Fair Housing

In 2015, the Obama administration sought to right that wrong by implementing the Affirmatively Furthering Fair Housing (AFFH) rule, which obliges local governments receiving U.S. Department of Housing and Urban Development (HUD) funding to analyze barriers to fair housing and come up with actionable, measurable plans to live up to the responsibility in the Fair Housing Act.

HUD’s 2015 AFFH rule was designed to be a collaborative and iterative process between HUD and local jurisdictions. The rule did not suggest that “the federal bureaucracy should dictate where and how people live,” despite President Trump’s claims to the contrary.

Under the new Assessments of Fair Housing, local governments were required to work across departments, engage in robust community participation and make data-informed decisions to evaluate the current environment and develop prioritized plans to reduce disparities.

In the first year of AFFH implementation, only 22 jurisdictions, including three major cities, ever submitted their Assessments of Fair Housing and HUD’s Office of Fair Housing and Equal Opportunity was never fully staffed before the Trump administration effectively killed the rule in 2016 and 2018. The new 2020 rule simply requires a jurisdiction to certify that it will affirmatively further fair housing.

In 2019, Trump established the White House Council on Eliminating Regulatory Barriers to Affordable Housing and appointed HUD Secretary Dr. Benjamin Carson to serve as its chair. The current actions of the administration are at odds with the council, which aims to “incentivize state, local and tribal governments to reduce barriers to affordable housing development,” among other things. The sudden about-face appears motivated more to activate Trump’s political base in the home stretch of the election season.

The president is correct that, “the shameful days of redlining are gone.” We have made it both illegal and socially taboo to discriminate based on a person’s race, color, religion, sex, familial status, national origin and disability. However, a 2018 study by the National Community Reinvestment Coalition shows that the vast majority of neighborhoods marked “hazardous” in red ink on maps drawn by the federal Home Owners’ Loan Corp. from 1935 to 1939 are today much more likely than other areas to comprise lower-income, minority residents. The federal government was responsible for creating and perpetuating the racial segregation that still lingers today and so too has a responsibility to correct its own wrongs.

While the ban of redlining and outright discrimination is undoubtedly a net-positive, it also means that it can be harder to identify the root causes of disparities when there are no blatantly racist policies to blame.

Which gets me to disparate impact. COVID-19 disproportionately impacts minorities, Low Income Housing Tax Credits (LIHTC) are disproportionately located in low-income and minority neighborhoods and African American women disproportionately die during childbirth, just to name a few. COVID-19, LIHTCs and childbirth are certainly not in-and-of-themselves racist, and yet, they have a disparate impact on racial minorities. That recognition was the center of the 2015 Supreme Court of the United States ruling in Texas Dept. of Housing and Community Affairs (TDHCA) v. Inclusive Communities Project, Inc.

The plaintiffs argued that the TDHCA’s policies had a disparate impact on racial minorities by incentivizing the siting of LIHTCs in minority-dominated neighborhoods and disincentivizing LIHTC siting in white-dominated suburbs. The court held the Fair Housing Act allows lawsuits based on disparate impact – that is, an allegation that a law or practice has a discriminatory effect, even if it was not based on a discriminatory purpose.

In our deeply imperfect world, we must consider all factors that contribute to the disparate impact on racial minorities and do everything in our power to right them. Yes, land prices may be higher in suburbs; yes, local residents may be better organized and endlessly protest against affordable housing, making it difficult to secure zoning changes and construction permits; and yes, the tax code mandates a 30 percent basis boost for projects located in qualified census tracts (QCTs), making developments in QCTs more financially feasible. But that does not mean we get a pass just because it is challenging.

That means we must change the systems, rules and regulations that enshrine those barriers. That’s what systemic racism means. These man-made systems are malleable and represent the values of their creators.

We could, for example, offer a basis boost for areas of opportunity as well, or further lower the cut-off for the mortgage interest deduction from the current $500,000 if we decide that it’s not the highest, best use of scarce federal dollars.

And so, we’re faced with the question of what do we, as a society, value? Do we value all children and individuals having access to good schools and opportunities, regardless of their race and zip code? Do we value ensuring that the least among us have a roof over their head? Do we believe that low- and middle-income workers, (read: essential workers) like teachers, restaurant workers, nurses, grocery store clerks and firefighters should be able to afford to live in the communities which they serve? Who are we willing to allow to be our neighbor and what will we do to ensure that our neighborhood is open to people regardless of their income or race?

So let’s be clear, the administration’s actions to undo the AFFH rule does not absolve us of our collective responsibility to affirmatively further fair housing. Nor will it stop the advancement of housing choice, which has proven in countless studies to improve educational, health and career attainment outcomes. Property values will not decrease nor will crime increase with the development of affordable housing. But, then again, the president is not using fact-based or legal arguments. This has always been an emotional argument designed to scare people into a defensive crouch to protect their own interests. NH&RA will continue to defend the facts while appealing to the better angels of our nature to love thy neighbor as thyself, without qualifiers. I hope you’ll join us.