The Biden administration is finally ready to show teeth on housing discrimination

For 55 years, the Fair Housing Act, a landmark civil rights law intended to address housing discrimination, required communities to certify that they were working to reduce government-sponsored segregation. But for decades, the Department of Housing and Urban Development (HUD) did nothing to make sure these cities actually did.

The new regulation is intended to give desegregation mandates some teeth. The Biden administration’s housing department proposed new rules last week that would require nearly all communities across the U.S. to create plans to address local housing discrimination or face penalties, including the potential loss of billions of dollars in federal funding. Essentially, cities or counties that receive HUD grant money — large and small, rural, urban, and suburban — must comply.

Under the 284-page rule, known as the Affirmatively Furthering Fair Housing rule, communities must create a plan with input from local stakeholders, and submit it to HUD for approval. If approved, communities must then provide annual updates on their progress, and individuals can file federal complaints if they feel their leaders are dragging their feet.

This new assertiveness from HUD – backed by enforcement mechanisms and credible threats of necessary funding – may finally end the federal government’s ignorance of housing segregation. But previous attempts by the Obama administration to do the same were blocked when Donald Trump was elected, and it is not yet clear whether this second attempt will meet the same fate.

“We’re done with communities that don’t serve people,” Housing Secretary Marcia Fudge told reporters. “We will be accountable to the people who give us our resources. We can no longer as a federal government continue to fail the people we need to help.

The Biden administration is seeking public comment on its administration over the next 60 days, with the goal of having a final version take effect by the end of 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 housing opportunities a fairer and more affordable and a stronger and more vibrant environment.

Huh, wait, have we heard this song before? (Yes.)

“Affirmatively furthering fair housing” is a mouthful, but what it really means is that prohibiting housing discrimination is not enough. Just as important, according to the late US senator from Minnesota and co-author Walter Mondale, is replacing a segregated environment with an “integrated and balanced lifestyle.”

In other words, desegregating the state requires some proactive measures – or “affirmative” – ​​such as providing rides and counseling for those who want to move from low-income urban areas to affluent suburbs. It may require increasing the value of housing vouchers so that low-income recipients can spend their money in more expensive neighborhoods. It may require cities to direct new subsidized housing developments to wealthier (and whiter) neighborhoods.

In 2008, the 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 will not be penalized. This conclusion was echoed by a 2010 Government Accountability Office report, which found that communities were not complying with federal fair housing mandates and that HUD was failing to enforce those rules.

So in 2015, the Obama administration released similar regulations, intended for fairer housing. It was seen as a long-awaited victory for civil rights – but it 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 “eradicate the suburbs.” Ben Carson, who will continue to lead HUD under Trump, also claimed that the AFFH rule was just a “mandated social engineering scheme.[e].”

The Trump administration has taken several steps to undermine the rule, including releasing its own version, which civil rights groups blasted as weak and hollow. Shortly after taking office, Biden pledged to roll back Trump’s regulations and recommit himself to implement the Fair Housing Act.

The Obama-era rule, though short-lived, also had problems.

Phil Tegeler, executive director of the Poverty Race and Research Action Council, a civil rights group, said “not strong enough” in some key ways, especially when it comes to opportunities for local lawyers to appeal lackluster progress.

Tegeler also felt a lot communities refused to “face the history of segregation head-on” and instead proposed in the fair housing plan only measures that would invest more in high poverty communities: “It should be a two / and rule, but if you look. in these plans, many are unbalanced, and do little to set goals for housing mobility and desegregation.

Biden’s house officials said that the proposed version includes important updates to make it easier for smaller communities to participate, and harder for leaders. to meet their obligations.

The changes include making the required data analysis easier, so jurisdictions don’t need to hire outside consultants to complete it. They also include promises to beefed-up technical assistance, other mechanisms for enforcement, and increased public transparency rules. Local governments should too hold multiple community meetings, at different times and in different locations, to incorporate feedback from different constituencies.

“We are cognizant of the fact that public engagement is often done in a way that only turns out certain voices,” Deputy General Counsel HUD for Fair Housing Sasha Samberg-Juara told me. “We don’t expect working people to show up until the 3pm meeting.”

Will this revision stick?

Ultimately, however, what plagued the Obama-era rule was not its shortcomings and practical difficulties — but that it was only a matter of time before the Trump administration dismantled it. This means that no community has to change its behavior in a lasting way; desegregation, if we are serious about it, requires a sustained commitment over many 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 this question. But it’s clear federal housing officials at least thought about the risk of legal ping-pong when crafting the new rules, because they designed them without the separate enforcement tools that accompanied the Obama-era regulations. To stymie Obama’s rule while still technically leaving it on the books, Trump officials scrapped enforcement tools – a narrow-seeming move that allowed the Trump administration to win in court.

In contrast, to block Biden’s administration, opponents must at least come up with something else to argue in front of the judge.

Tegeler, of the Poverty Reduction and Action Research Council, is very optimistic about the chances of the rule surviving this time.

“The fact that the previous rule came out in 2015 and it was a campaign issue, along with the false narrative about removing suburban zoning powers and all that nonsense, I think that’s a recipe for repeal of the rule under the new administration,” he told me. “The problem is not enough time to become a regular part of the federal housing program. If it had come out in 2013, I think it would have been quite different; there would have been four years of training, and it would not have been a big problem.

That said, if the rule is only in effect for a year and Republicans take the White House, it’s hard to say what might be done. “It depends on how much political football becomes,” Tegeler said.