Originally published in Vox on January 23, 2023.
For 55 years, the Fair Housing Act, the landmark civil rights law meant to address housing discrimination, has required communities to certify that they are working to reduce government-sponsored segregation. But for decades, the Department of Housing and Urban Development (HUD) did little to ensure cities were actually following through.
A new regulation is meant to give that desegregation mandate some teeth. The Biden administration’s housing department proposed a new rule last week that would require virtually all communities across the US to create plans to address local housing discrimination or face a penalty, including the potential loss of billions of dollars in federal funding. Essentially, any city or county that accepts HUD grant money — large and small, rural, urban, and suburban — would have to comply.
Under the 284-page rule, known as the Affirmatively Furthering Fair Housing rule, communities would need to craft their plans with input from local stakeholders, and submit them to HUD for approval. If approved, communities would then need to provide annual updates on their progress, and individuals could file federal complaints if they feel their leaders are dragging their feet.
This newfound toughness from HUD — backed by enforcement mechanisms and credible threats of yanking needed funding — could finally spell an end to the federal government turning a blind eye toward housing segregation. But a previous attempt by the Obama administration to do the same was stymied when Donald Trump was elected, and it’s not yet clear if this second try will meet the same fate.
“We are done with communities that do not serve people,” Housing Secretary Marcia Fudge told reporters. “We are going to hold responsible those that we give resources to. We no longer as a federal government can continue to fail the very people we need to help.”
The Biden administration is seeking public comment on its rule over the next 60 days, with the intent to have a final version take effect later this year.
A coalition of three dozen housing and civil rights groups — including the NAACP Legal Defense and Educational Fund, the ACLU, UnidosUS, and the Lawyers’ Committee for Civil Rights Under Law — hailed the release of the rule, calling it “an important step toward creating more equitable and affordable housing opportunities and stronger, more viable neighborhoods.”
Huh, wait, haven’t we heard this song before? (Yep.)
“Affirmatively furthering fair housing” is a mouthful, but what it really means is that banning housing discrimination is not enough. Just as important, according to the late US senator from Minnesota and Fair Housing Act co-author Walter Mondale, is to replace segregated neighborhoods with “truly integrated and balanced living patterns.”
In other words, desegregating the country requires some proactive — or “affirmative” measures — like providing rides and counseling to those who might want to move from a low-income urban area to an affluent suburban one. It might require increasing the value of housing vouchers so that low-income recipients could cash them out in more expensive neighborhoods. It might require cities to steer new subsidized housing development into wealthier (and whiter) locales.
In 2008, a national commission on fair housing concluded that HUD requires “no evidence that anything is actually being done as a condition of funding,” and that municipalities that actively discriminate or fail to promote integration go unpunished. This conclusion was echoed by a Government Accountability Office report in 2010, which found that communities were failing to comply with federal fair housing mandates and that HUD was failing to enforce those rules.
So in 2015, the Obama administration released its own similar regulation, intended to affirmatively further fair housing. It was considered a long-awaited victory for civil rights — but faced a backlash from conservatives and some local governments. Stanley Kurtz of National Review called it “easily one of President Obama’s most radical initiatives.” Trump called the desegregation rule an attempt to “abolish the suburbs.” Ben Carson, who would go on to lead HUD under Trump, likewise claimed the AFFH rule was just another “mandated social-engineering schem[e].”
The Trump administration took several steps to weaken the rule, including releasing its own version, which civil rights groups blasted as weak and hollow. Shortly after taking office, Biden pledged to rescind Trump’s regulation and recommit to fully implementing the Fair Housing Act.
The Obama-era rule, while in effect only a short while, had some problems, too.
Phil Tegeler, executive director of the Poverty Race and Research Action Council, a civil rights group, said it was “not strong enough” in some key ways, particularly when it came to providing opportunities for local advocates to appeal lackluster progress.
Tegeler also felt many communities were refusing to “confront their history of segregation head-on” and instead proposed in their fair housing plans only measures that would invest more significantly in high-poverty communities: “It’s supposed to be a both/and rule, but when you look at the plans, many of them were not balanced, and were doing very little in terms of setting goals around housing mobility and desegregation.”
Biden housing officials say they believe their proposed version includes important updates to make it easier for smaller communities to participate, and harder for leaders to skirt their duties.
The changes include making the required data analysis easier, so that jurisdictions would not need to hire outside consultants to get it done. They also include pledges for beefed-up technical assistance, more mechanisms for enforcement, and increased public transparency rules. Local governments would also be required to hold multiple community meetings, at different times of the day and in different locations, to incorporate feedback from a broader array of constituents.
“We are cognizant of the fact that public engagement is often done in a way that only turns out certain voices,” HUD’s Deputy General Counsel for Fair Housing Sasha Samberg-Champion told me. “We can’t expect working people can show up to a 3 pm meeting.”
Will this revision last?
Ultimately, though, what doomed the Obama-era rule wasn’t its omissions and practical difficulties — it was that it existed for so little time before the Trump administration crushed it. This meant that no community ever really had to change its behavior in lasting ways; desegregation, if we’re serious about it, would require sustained commitment over years. If Republicans take back the White House in 2024 or 2028, will this new rule meet the same fate?
HUD declined to comment when I asked them this. But it’s clear federal housing officials were at least thinking about the risk of legal ping-pong when they crafted their new rule, because they designed it without a separate enforcement tool that had accompanied the Obama-era regulation. To stymie Obama’s rule while still technically leaving it on the books, Trump officials scrapped the enforcement tool — a narrow-seeming move that allowed the Trump administration to prevail in court.
Put differently, to impede Biden’s rule, opponents would at least have to come up with something else to argue in front of a judge.
Tegeler, of the Poverty Race and Research Action Council, feels cautiously optimistic about the rule’s chances to survive this time around.
“The fact that the prior rule came out in 2015 and became a campaign issue, along with the false narrative about taking away suburban zoning power and all that nonsense, I think that was a recipe for repeal of the rule in the new administration,” he told me. “The problem was there wasn’t enough time for this to become a routine part of federal housing programs. If it had come out in 2013, I think it would have been quite different; there would have been four years of practice, and it wouldn’t have been such a big deal.”
That said, if the rule is only in effect for one year and then a Republican takes the White House, it’s hard to say what they might do. “It depends on how much of a political football it becomes,” Tegeler said.