Fair Housing: HUD Action, Hill Hearing

Legislation | April 14, 2021 | by Linda Couch

The inability to stop discrimination and overhaul unfair systems is crippling this nation. It has not only impeded our economic progress and productivity, but it has harmed countless millions resulting in mental, physical, social, and economic duress. – Lisa Rice, president and CEO, National Fair Housing Alliance

An April 13 hearing on, Separate and Unequal: The Legacy of Racial Discrimination in Housing, coincided with steps from HUD to reinstate fair housing rules undermined by the Trump Administration: affirmatively furthering fair housing and disparate impact.

On April 12, HUD’s Office of Fair Housing and Equal Opportunity submitted an interim final rule, Affirmatively Furthering Fair Housing; Restoring Statutory Definitions and Certifications, for review by the White House’s Office of Management and Budget. The same day, HUD also submitted to OMB a proposed rule to reinstatement of HUD's Discriminatory Effects Standard, also referred to as the disparate impact rule.

The Affirmatively Furthering Fair Housing and disparate impact rules were instituted by the Obama Administration to finally bring accountability and enforcement mechanisms to the 1968 Fair Housing Act.

Looking back on the policies that brought the Fair Housing Act to enactment, Senate Banking, Housing, and Urban Affairs Committee Chair Sherrod Brown (D-OH) said in his opening statement, “Following these decades of exclusion and destruction, the Fair Housing Act offered enormous promise. It didn’t just ban racial discrimination – it also required that new federal funds be used in ways that would affirmatively further fair housing.” But, attempts by HUD to immediately enforce the Fair Housing Act were blocked and “stayed that way for decades,” Chair Brown said.

As Richard Rothstein, distinguished fellow of the Economic Policy Institute and senior fellow, emeritus, NAACP Legal Defense and Educational Fund testified at the April 13 hearing, “Policies such as redlining, mandated racially restrictive covenants, segregation in federal public housing, and other racially discriminatory housing policies prevented African Americans from buying homes outside of proscribed areas. While the Fair Housing Act of 1968 sought to prohibit discriminatory policies going forward, the government undertook no serious assessment or policy of restitution to address the decades of past harm, exclusion and discrimination caused by federal policies and practices.”

“Housing issues remain at the core of our nation’s structural inequality,” Mr. Rothstein testified. Among Mr. Rothstein’s recommendations: vigorous enforcement of Affirmatively Furthering Fair Housing.

Lisa Rice, president and CEO, National Fair Housing Alliance, testified on the nation’s long history of racist laws and policies passed to counteract them. “What is more, when civil rights laws were passed, they did not include comprehensive provisions to dismantle the structures of inequality that had been put in place,” Ms. Rice testified. “The only real provision for creating well-resourced, fully-invested, inclusive neighborhoods is the Affirmatively Furthering Fair Housing provision of the Fair Housing Act. But this provision of the law does not offer any private right of action and must be achieved through voluntary compliance. One mechanism for enforcing the AFFH provision was established via the 2015 AFFH Rule promulgated by HUD. However, that rule was summarily overridden by the Trump administration…,” Ms. Rice said.

Reinstating Affirmatively Furthering Fair Housing and the disparate impact rule will not alone solve the deep wounds of racist housing policies, but they are important. As, testified at the hearing, “Federal laws and policies created residential segregation, the dual credit market, institutionalized redlining, and other structural barriers. When we passed our nation’s civil rights laws, we restricted the ability of lenders and housing providers to consider a person’s race or national origin when making a decision. But we left the structures of inequality in place. We passed the Fair Housing Act, but we left residential segregation and exclusionary zoning ordinances in place; we passed the Equal Credit Opportunity Act, but we left the Dual Credit Market in place. We passed other civil rights laws but we left structural racism in place. Well those systemically unfair systems that we left in place are doing their job; they are performing their function. So we should not be surprised at growing inequality and racial disparities.”

Not all witnesses agreed that Affirmatively Furthering Fair Housing tool be recharged. “Another concerning case of positive discrimination is the Affirmatively Furthering Fair Housing (AFFH) initiative, developed by the Obama administration. Again, it has a core of a good idea. Too many of our municipalities have adopted draconian zoning laws, which limit construction of the types of smaller single-family and multifamily homes that have historically served lower-income households well. But the AFFH’s emphasis on using federal Housing and Urban Development (HUD) funding as a stick to force the construction of affordable housing targeted for minorities will not serve well those it aims to help,” Mr. Howard Husock, adjunct fellow, American Enterprise Institute, and contributing editor, City Journal, Manhattan Institute.

Visit the Committee’s hearing page.