The Magazine

HUD’s Power Grab

The Obama administration plots a wholesale federal intrusion into local housing policy

Oct 14, 2013, Vol. 19, No. 06 • By TERRY EASTLAND
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President Obama may have been distracted by Syria, but his domestic presidency proceeds apace, seeking what he heralds as “the transformation of the United States.” Especially is this true at the Department of Housing and Urban Development, which aims to remake neighborhoods all across America, starting, as we’ll see, in Westchester County, N.Y.

Shaun Donovan

Shaun Donovan

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Established in 1965 at the height of the last unambiguously progressive presidency, HUD enforces, among other laws, the Fair Housing Act of 1968, which forbids discrimination in housing on the basis of race and ethnicity. That act, together with other statutes, says HUD, also directs “program participants”​—​local governments and states that receive federal housing grants, and also public housing agencies​—​to go beyond simply combating discrimination. They are to take “proactive steps” to “address significant disparities in access to community assets, .  .  . overcome segregated living patterns and support and promote integrated communities, [and] .  .  . end racially and ethnically concentrated areas of poverty.” HUD has a name for all this proactive step-taking: Affirmatively Furthering Fair Housing, also known in HUD circles by its acronym, AFFH.

It so happens, however, that the transformation of America by means of AFFH has been a bit too slow in coming. Says HUD: “The current practice of affirmatively furthering fair housing as carried out by HUD grantees .  .  . has not been as effective” as it should have been. Indeed, housing secretary Shaun Donovan has called it “a meaningless paper exercise without any teeth,” a difficult metaphor to conceptualize, but you get the point.

Under Donovan, HUD has now crafted a toothier AFFH policy. It can be found in a proposed rule that was published on July 19 in the Federal Register (not on my list of recommended reading, but still where you often have to go to find out what government is planning). The 60-day period for public comment ended last month, and by December the rule likely will have entered the Code of Federal Regulations. It’s titled​—​what else?​—​“Affirmatively Furthering Fair Housing.”

Bear with me as I report the basics of the new policy, beginning with the purpose of AFFH, which the rule says is “to improve fair housing choice for all.” People possess improved choice when they “have the information, options, and protection to live where they choose without unlawful discrimination and other barriers related to race, color, religion, sex, familial status, national origin, or handicap.” And while “all” people should have such choice, the focus of the rule is on accomplishing better choice for blacks and Hispanics in particular.

Grantees​—​the states, localities, and public housing authorities mentioned above​—​are required to improve choice, through “planning, strategies, and actions.” And HUD promises to help by providing data on “patterns of integration and segregation; racially and ethnically concentrated areas of poverty; [and] access to education, employment, .  .  . transportation, and environmental health, among other critical assets.”

From the data, statistically expressed in terms of race and other protected classes, grantees are directed to identify “fair housing issues” in their communities. “Fair housing issue” is a technical term for a segregated living pattern, a racial concentration of poverty, or disparate access to some community asset. Grantees are to determine what accounts for the “fair housing issues” they have identified as they prepare, under a process involving community participation, an “assessment of fair housing” (AFH, by the way).

And that’s what they are to submit to HUD for approval. The AFH is to include goals that “will inform housing and community development policy and investment planning.” The proposed rule gives as an example of such a goal “promoting greater mobility and access to areas offering vital assets such as quality schools, employment, and transportation.” A program participant whose AFH is not approved could lose its federal housing dollars. In other words, you satisfy HUD, or you do without your grants.

Its tedious terminology notwithstanding, the proposed rule signals a momentous change in policy. When the Fair Housing Act was passed, “fair housing” meant “non-discrimination” in the various transactions that housing encompasses, from selling a house to securing a home mortgage loan. Over the years, however, fair housing has evolved in the law such that it now means something far more ambitious: “fair housing choice,” with its focus on “fair housing issues,” which include not only “evidence of illegal discrimination” but also, and more important, various “barriers” that the rule says are “related” to race, color, and national origin, and explain segregated living patterns.

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