Secretary of Housing and Urban Development Ben Carson is the latest high-level Trump pick to face the wrong end of a lawsuit. After Carson suspended a 2015 rule promoting statutorily-mandated racial integration in housing, three fair housing advocacy groups—National Fair Housing Alliance and two state groups, Texas Appleseed and the Texas Low Income Housing Information Service—filed suit to defend that rule.
It took six years to develop and implement the rule, which required communities receiving funding from HUD to formally assess residential segregation, identify barriers to racial integration, and come up with a plan to eliminate barriers.
Technically, this rule shouldn’t have been necessary. It was created to enforce existing legislation, the 1968 Fair Housing Act, by tying federal funding to compliance.
The 2015 rule required more than 1,200 communities receiving billions of federal housing dollars to draft plans to desegregate their communities — or risk losing federal funds.
The problem for Carson is that there’s a process for these things. You’ve got to provide advance public notice and/or opportunity to comment on a proposed rule change. Carson skipped that critical step.
HUD’s argument for repealing the rule is, essentially, that no one follows it, and enforcing it would be just way too tedious.
HUD said it based its decision on the fact that more than a third of the 49 plans initially submitted to the agency were rejected as incomplete or inconsistent with fair-housing and civil rights requirements.
Fair-housing advocates who helped develop the rule under the Obama administration said that is precisely why the rule is necessary and that nearly all of the rejected plans were soon accepted after HUD officials stepped in to help.
The agency ... said that the process is too burdensome for communities and that too many HUD resources were being devoted to helping them revise their plans.
Adding insult to injury: even when HUD knows of bad practices, it’s continued to fund the communities rather than redirect the dollars.
“HUD has continued to grant federal dollars to municipalities even when they know the municipalities are engaging in discrimination,” said Lisa Rice, president and chief executive of the National Fair Housing Alliance, one of three housing advocacy groups that joined the lawsuit. “They are rewarding cities for bad behavior.”
The second, non-administrative law aspect of the challenge draws on the statute itself:
The lawsuit also accuses HUD of violating its statutory duty to ensure that federal funds are used to promote fair housing and seeks a court order requiring the agency to immediately restart the rule.
“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,” the lawsuit said. “Judicial intervention is necessary to vindicate the rule of law and to bring fair housing to communities that have been deprived of it for too long.”
What’s particularly depressing is that the 2015 rule was working.
[T]he 2015 rule requir[ed] communities take meaningful action to overcome long-standing patterns of segregation and analyze housing patterns, concentrated poverty and disparities in access to transportation, jobs and good schools.
Since the rule, housing advocates say, many communities have made great strides. Officials in Paramount, Calif., have set deadlines to amend its zoning ordinance to make housing more inclusive. New Orleans has promised to create 140 affordable rental units in wealthier communities by 2021 and increase homeownership among families receiving housing subsidies by 10 percent each year.
Without the prospect of enforcement, many communities will lose hope—and be condemned to unconscionable and even deteriorating housing conditions.
In Hidalgo County, Tex., which has historically ignored the needs of the predominantly Latino population in “colonias” that often lack basic infrastructure such as water, sewage, electricity and paved roads, officials have no incentive to improve their plan now that HUD no longer requires it.
If the court finds the only problem is that Carson didn’t follow the rules for repealing the policy, it could still be repealed, just more slowly. But if the judge finds that HUD does have a statutory responsibility that it’s not meeting, possibly prescribing responsibility, the outcome could be a coup for fair housing advocates.