The Trump Administration Is Making It Easier to Evade Housing Desegregation Law, Triggering Civil Rights Lawsuit

Originally published in The Intercept on May 8, 2018.
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The Trump administration has illegally suspended a rule that requires local governments to show they’re working to reduce housing segregation, according to a lawsuit filed Tuesday against the U.S. Department of Housing and Urban Development and its secretary, Ben Carson.

HUD announced in early January that it would delay enforcing the rule. Civil rights advocates say the delay is an effective end to federal fair housing oversight over billions of dollars to be doled out to local governments for at least the next six years. They have also accused HUD of reducing the amount of support it offers local communities in implementing the desegregation rule, effectively sabotaging its success.

“Decades of experience have shown that, left to their own devices, local jurisdictions will simply pocket federal funds and do little to further fair housing objectives,” reads the complaint, which was filed by the Lawyers’ Committee for Civil Rights Under Law; the American Civil Liberties Union; the NAACP Legal Defense and Educational Fund; Public Citizen; the Poverty & Race Research Action Council; and the law firm Relman, Dane & Colfax.

The rule in question is called Affirmatively Furthering Fair Housing, or AFFH, and was finalized in 2015. It was designed to more effectively implement the integration mandates of the Fair Housing Act, a landmark civil rights statute passed a half-century ago to eradicate discrimination and segregation in housing. While jurisdictions that receive federal HUD funds have long had to certify that they are indeed working to reduce government-sponsored segregation, for decades HUD did little to ensure real steps were actually being taken.

In the complaint, which was filed in the U.S. District Court for the District of Columbia, the lawyers credit the AFFH rule with spurring commitments by local governments over the last two years to provide more help for African-Americans facing eviction from their homes, to revamp zoning laws to be more inclusive of people with disabilities, and to build more low-income housing in affluent areas.

HUD spokesperson Brian Sullivan declined to comment on the suit, citing pending litigation. He instead referred to his agency’s statement released in January, which says that HUD has “extended the deadline” for local governments to comply with the AFFH rule “while HUD invests substantial human and technical resources toward improving” the tool used for rule compliance. “HUD stands by the Fair Housing Act’s requirement to affirmatively furthering fair housing, but we must make certain that the tools we provide to our grantees work in the real world,” the statement said.

AFFH was born out of a problem that was identified at least a decade ago.

In 2008, the National Commission on Fair Housing and Equal Opportunity reported that the government’s existing system for ensuring fair housing compliance “has failed.” The commission, co-chaired by two former HUD secretaries, noted that the federal housing agency requires “no evidence that anything is actually being done as a condition of funding,” and does not punish jurisdictions found to be directly involved in discrimination or failing to affirmatively further fair housing.

One year later, HUD convened a listening conference with over 600 participants from across the country to discuss compliance with federal fair housing mandates. John Trasviña, who was then HUD’s assistant secretary for fair housing and equal opportunity, testified before Congress later that “fair housing and civil rights groups, mayors, counties, and states all voiced their desire for HUD to amend its regulations to provide more concrete, specific information about how to develop a meaningful plan for affirmatively furthering fair housing.”

In 2010, the Government Accountability Office released a comprehensive report outlining the failures of local jurisdictions to comply with federal fair housing mandates, and the failures of HUD to promote meaningful oversight and enforcement over those obligations.

Over the next five years, key stakeholders worked closely with HUD to develop the newly revised AFFH rule, which not only gave communities more tools to carry out their fair housing obligations, but also strengthened HUD’s enforcement mechanisms for  oversight. In other words, the fair housing mandates finally had some teeth.

Civil rights advocates have long worried that the Trump administration might take aim at this hard-fought rule. Prior to Ben Carson’s appointment as HUD secretary, he had penned an op-ed likening the AFFH rule to other “failed socialist experiments.” Once he was confirmed, Carson told the Washington Examiner that he “believe[s] in fair housing,” but not in “extra manipulation and cost,” and so his agency will need to “reinterpret” the rule.

In suspending the AFFH rule, advocates allege HUD has violated the Administrative Procedures Act, the federal law that governs how federal agencies propose and implement regulation. The Trump administration has been repeatedly accused of violating the APA, issuing new directives and mandates, and rescinding old ones, without going through the established channels of rule-making.

This is the second major civil rights lawsuit aimed at HUD in the last year on the grounds of violating the Administrative Procedures Act. As The Intercept reported at the time, civil rights attorneys sued HUD and Ben Carson in October, for suspending a rule that would have assisted low-income voucher holders to move into more affluent communities. The attorneys succeeded in their legal challenge in late December, and the rule is now back in effect.

Sasha Samberg-Champion, a Relman, Dane & Colfax attorney who was involved in the former case and is also litigating this one, told The Intercept that their earlier experience in court “suggests to us that the judges in the District Court for the District of Columbia are well acquainted by now with lawless actions” of HUD and other Trump administration agencies.

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The Fight for the Suburbs

Originally published in the January/February 2018 issue of The New Republic.
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Due in no small part to his praise for white supremacists, his calls to deport immigrants, and his push to ban Muslims, Donald Trump has spurred Americans to protect racial minorities and work toward a more just society. That fight is playing out not just in sanctuary cities like New Haven and Los Angeles, or in the streets of Charlottesville. It is also being waged in Washington, at the Department of Housing and Urban Development.

One of HUD’s central responsibilities is to implement the Fair Housing Act, the landmark anti-discrimination law that turns 50 years old in 2018. While efforts to desegregate inner cities continue at a frustratingly slow pace, fair housing advocates did win significant victories during the Obama years. In 2015, HUD issued a rule that provided local governments with new data tools to identify segregated living patterns and meet their legal obligations to promote integration. “These actions won’t make every community perfect,” Barack Obama said at the time. “But they will help make our communities stronger and more vibrant.” A year later, the administration issued another regulation to help families move out of poor, segregated neighborhoods—in part by increasing the purchasing power of their housing vouchers.

But Trump’s administration threatens to undercut these gains. HUD Secretary Ben Carson has criticized the Obama-era rules as “mandated social engineering” and promised his agency would “reinterpret” them. Over the summer, the department announced it would be suspending the rule to help poor families relocate to more affluent neighborhoods, prompting the NAACP Legal Defense Fund and other civil rights groups to file a lawsuit in response.

But the struggle for fair housing is not simply a series of legal fights over regulations and subsidy formulas. It involves much larger battles—ones that take aim at Americans’ basic living patterns and the country’s history of government-sponsored segregation. And as the racial makeup of our cities and suburbs continues to shift, this conflict could profoundly impact U.S. electoral politics. Indeed, civil rights advocates maintain, a successful push for fair housing could transform not only the demographics of our country but even its political future.

The Fair Housing Act was born out of racial violence. Following the urban riots that exploded across the country in 1967, President Lyndon Johnson established the Kerner Commission to investigate the unrest. In February 1968, the commission pointed to insidious racial segregation as the cause, having created “two societies, one white, one black.” That month, Democratic Senator Walter Mondale and Republican Senator Edward Brooke—the only African American in the Senate—introduced the Fair Housing Act. The law would help create “truly integrated and balanced living patterns,” Mondale said.

Critics argued that making it easier for black families to move into white neighborhoods would trample their property rights and constitute “discrimination in reverse.” Still, as racial strife grew more pronounced, and as Martin Luther King Jr. traveled the country calling for an elimination of the nation’s slums, pressure to address segregated housing continued to mount.

King’s assassination on April 4, 1968 finally pushed fair housing through an otherwise recalcitrant Congress. The day after King’s death, Mondale took to the Senate floor and implored his colleagues to uphold King’s legacy by immediately passing the bill. Johnson signed the legislation into law six days later.

The Fair Housing Act has grown stronger over the years. Its protections now cover seven classes: race, color, religion, sex, national origin, disability, and families with children. In 1988, Congress also beefed up the law’s enforcement mechanisms and increased the penalties associated with violating it.

Yet even with these gains, many urban areas still exhibit apartheid levels of segregation. In 2015, Mondale called integration the “unfinished business” of his fair housing law. “When high-income black families cannot qualify for a prime loan and are steered away from white suburbs, the goals of the Fair Housing Act are not fulfilled,” he said. “When the federal and state governments will pay to build new suburban highways, streets, sewers, schools, and parks, but then allow these communities to exclude affordable housing and nonwhite citizens, the goals of the Fair Housing Act are not fulfilled.” In many ways, the country remains divided into two societies—one white, one black.

Exploiting the country’s racial divisions has been a feature of modern American politics since at least Richard Nixon’s adoption of the Southern Strategy. Over the past half-century, Democrats have consolidated support in cities, while Republicans have increasingly targeted rural areas. Since Trump’s victory, these trends have fueled the argument that Democrats must win more white, working-class voters if they are to reclaim political power.

But this tidy framing of cities versus rural America overlooks today’s true electoral battleground: the suburbs. Following World War II, as affluent whites fled the inner cities, suburbs became a central pillar of support for the Republican Party. In 1980, 78 percent of suburban census tracts were predominantly white. That fell to 42 percent by 2009, and diverse suburbs jumped from 16 percent to 37 percent over the same period. Suburban areas, in other words, no longer resemble the Leave It to Beaver landscape of yesteryear. Today, more than 60 percent of suburbanites live in integrated or predominantly nonwhite areas.

These shifts present problems for the Republican Party—which has historically relied on the suburbs as bulwarks against blue cities—and opportunities for Democrats, as evidenced most recently by the gubernatorial election in Virginia. In 2016, though Trump won more suburban votes than Hillary Clinton, he was still the third Republican presidential candidate in a row to fail to win 50 percent of the suburban vote. Trump lost not only inner-ring suburbs around Chicago, New York, and Philadelphia, but also places like Cobb County, Georgia—which The New York Times once referred to as the “suburban Eden where the right rules.”

Fair housing has always been partly political in its aim. “The existence of segregated residential patterns helps politicians draw safe districts for white voters,” says Elizabeth Julian, a former HUD official and founder of the Inclusive Communities Project, a Dallas-based fair housing group. She argues that breaking down the racial, ethnic, and economic barriers that prevent people from living where they’d like to is not only good policy, but could also defuse some of the explosive dynamics that gave rise to Trump, and bolster the Democratic coalition in the process. “The political potential of integration is an overlooked benefit of integration,” Julian says.

Policies that promote desegregation could, of course, invite backlash. White suburban voters could retreat further into the fast-growing, right-leaning exurbs. And those who stay put could grow even more conservative if they feel a greater sense that their neighborhoods are being threatened by newcomers who don’t look like them. Still, those who worry about what Trump represents would do well to explore the possibilities of integrated, inclusive communities as a way to deny racial demagogues easy political footing. The Fair Housing Act was passed to spare America from what seemed to be a looming collapse. Now, at 50, it may yet do so.