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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In an interview, Paul Compton, chair of the Affordable Housing and Community Development group at the law firm Bradley Arant Boult Cummings, summarized the change in policy this way: “It’s a real shift in emphasis from ensuring that the private sector and participants in federal programs don’t unlawfully discriminate to defining the existence of racially and ethnically ‘segregated’ neighborhoods to be in themselves a violation of fair housing.” Likewise, “if a neighborhood is not integrated in some vaguely defined ratio, then that in itself is a fair housing issue.”

Programs affecting neighborhoods must be “reoriented,” as Compton put it, in order to make them more integrated and also more livable​—​incubators of opportunity, in HUD’s vision of America.

As Secretary Donovan told the NAACP at its annual convention in July, “It’s about more than .  .  . access to the housing itself. It’s also about giving every community access to important neighborhood amenities that can make a tremendous difference in a person’s life outcome. I’m talking about good schools, safe streets, jobs, grocery stores, health care, and a host of other important factors.”

For this vision of America to become a reality, Donovan emphasized to the conventioneers, HUD must “maximize the impact [that federal grants] have on communities.” Municipalities may find that they have to modify zoning and other land-use decisions in order to accommodate construction of affordable housing units in the communities, mostly white, that HUD wants remade. And because HUD is seeking to leverage decisions involving a community’s assets, it appears ready to intrude far more deeply than it already has into state and local governance.

This intrusion from Washington is one reason to take issue with the rule. And there are others. The rule states that “tenant selection and assignment policies should be designed to reduce racial and national origin concentrations, including racially or ethnically concentrated areas of poverty, and to reduce segregation and promote integration.” (Emphasis added.) In 2009 the Supreme Court struck down as unconstitutional race-based public school assignments made in order to achieve or maintain integration. It’s hard to see how race-based tenant selection and assignment decisions, made for similar reasons, could survive judicial review.

In a letter sent to Donovan last month, three members of the U.S. Commission on Civil Rights​—​Abigail Thernstrom, Peter Kirsanow, and Todd Gaziano​—​point out that the rule repeatedly uses the term “segregation” to describe housing patterns in which members of racial or ethnic groups are concentrated in particular areas. They observe that legal segregation was ended more than 40 years ago. In consequence, “geographic clustering of racial and ethnic groups is not in and of itself an invidious phenomenon.” The rule takes the opposite view of such clustering and fails to recognize that multiple factors usually account for it. The rule also makes the dubious assumption that people who live in a racial or ethnic cluster will be eager to exercise “fair housing choice” and escape to what HUD considers a better neighborhood.

That assumption is open to doubt, because​—​quoting the three commissioners​—​“many members of racial and ethnic minorities prefer to live in communities predominantly peopled by fellow members of their racial or ethnic group.” The reasons are evident: They have family and friends there, and they may work and have other involvements there​—​in churches and community groups. The commissioners write that the common preference for not moving out of a racially or ethnically clustered area “is particularly likely in communities primarily comprised of recent immigrants.”

With its new policy, HUD is seeking to use the power of the national government to create communities of a certain kind, each having what the department regards as an appropriate mix of economic, racial, and ethnic diversity. But HUD may be frustrated in this effort if only because, as Abigail and Stephan Thernstrom wrote in America in Black and White: “Neighborhoods are not arbitrary packages of housing whose occupancy benevolent social engineers can rearrange with predictable and positive consequences.”

Here, perhaps, it is worth noting that in undertaking such a massive, neighborhood-engineering policy, HUD will require the submission of AFHs by 4,550 municipalities, counties, and states, and by 3,400 public housing authorities. HUD concedes that it cannot quantify the benefits and costs of policies influenced by the rule, identifying only annual compliance costs on the part of program participants, which it estimates at $3 million to $9 million.

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