Senator Marco Rubio with incoming HUD secretary Dr. Ben Carson at Carson's confirmation hearing. Kevin Lamarque/Reuters

Two bills have already proposed doing away with a new HUD rule, following a long tradition of opposing proactive desegregation.

The young year of 2017 has so far offered such a blizzard of political craziness that some less-spectacular developments have gone relatively unnoticed. One such story: The current machinations in Congress to undercut—yet again—a common-sense regulation to promote racial integration.  

On January 11, GOP senator Mike Lee from Utah and former presidential candidate Marco Rubio introduced a bill called the “Local Zoning Decisions Protection Act of 2017.” The legislation seeks to nullify the 2015 Affirmatively Furthering Fair Housing rule, which gives concrete guidance to entities receiving federal funds on how to proactively dismantle historical patterns of housing segregation—a requirement of the Fair Housing Act of 1968. A similarly titled bill on the House side, spearheaded by Representative Paul Gosar of Arizona, goes further: It asks to scrap the accompanying mapping tools that helps local communities identify patterns of racial segregation. Via Bill H.R. 482:

Notwithstanding any other provision of law, no Federal funds may be used to design, build, maintain, utilize, or provide access to a Federal database of geospatial information on community racial disparities or disparities in access to affordable housing.

That this rule and the accompanying tool will be rescinded is a very likely possibility under this administration, especially given that Ben Carson, incoming secretary of the Department of Housing and Urban Development, subscribes to the age-old maxim that regulating against housing discrimination amounts to “social engineering.”

But that would be a disservice—not just to poor communities of color that are cut off from accessing the many benefits of living in high-opportunity neighborhoods, but for city residents as a whole.

The fraught history of furthering fair housing

In 2012, journalist Nikole Hannah-Jones traced the history of the Fair Housing Act. The law basically did two things: First, it prohibited discrimination in housing policy and practice, and second, it asked that federal agencies “affirmatively further” fair housing. In other words, it asked the government to take an intentional approach toward racial integration. The implementation of these provisions fell on George Romney—Mitt’s father—who headed HUD during the Nixon administration. And Romney took that role seriously, Hannah-Jones writes:

Romney ordered HUD officials to reject applications for water, sewer and highway projects from cities and states where local policies fostered segregated housing.

He dubbed his initiative "Open Communities" and did not clear it with the White House. As word spread that HUD was turning down grants, Nixon's supporters in the South and in white Northern suburbs took their complaints directly to the president.

Romney’s initiative, which by no means addressed every local government that violated the FHA, was soon reeled in by Nixon. His administration essentially brushed the “affirmatively furthering” part of the FHA mandate under the carpet, with long-lasting repercussions. For decades, HUD—under both Democratic and Republican administrations—hardly enforced the provision.

What municipalities receiving federal funds had to do was analyze the barriers to fair housing in their jurisdictions, and suggest plans to overcome them. A 2010 Government Accountability Office report found that neither the grant recipients nor HUD did a very good job of this. “There wasn't a lot of understanding by communities about what it meant to affirmatively further fair housing, and there wasn't a lot of oversight by HUD to make sure that they were,” says Diane Yentel, president and CEO of the National Low Income Housing Coalition, an organization that promotes housing access.

Enter the AFFH rule, which Barack Obama’s HUD floated in 2013. In 2015, shortly after the Supreme Court ruled that housing policies that inadvertently hurt minorities were just as bad as those that explicitly discriminated, HUD went ahead and formalized the AFFH rule. Emily Badger explained how the rule worked at the time in The Washington Post:

The new rules, a top demand of civil-rights groups, will require cities and towns all over the country to scrutinize their housing patterns for racial bias and to publicly report, every three to five years, the results. Communities will also have to set goals, which will be tracked over time, for how they will further reduce segregation.

In other words, it laid out a way for local communities to execute what the FHA had required them to back in 1968. It also provided them with the demographic and housing data to clearly visualize the housing trends in their neighborhoods. For example, local stakeholders can use this map of Milwaukee, Wisconsin to see that most subsidized housing is located in segregated neighborhoods, and plan accordingly:


The rule is to be phased in over multiple years. In 2016, only 13 jurisdictions had to comply with it, according to the NLIHC experts. That is a very small proportion of the 5,000 or so total program participants that will eventually be folded in—if the rule manages to remain on the books.

‘Obama’s war on the suburbs’

The arguments against the Affirmatively Furthering Fair Housing today are the same as they were in Romney’s time and in the decades after: that it is a form of social engineering.

According to Rep. Gosar, who introduced one of the current legislations against it, the AFFH is a product of “Obama’s war on the suburbs,”—“a way of punishing neighborhoods that don’t fall in line with his liberal agenda of federally mandated demographics.” Sen. Rubio, who supported the Senate bill, declined to be interviewed. But his office provided CityLab with this statement:

Top-down, one-size-fits-all regulations by Washington bureaucrats won’t help make affordable housing more accessible to those who need it. The best way to reduce the cost of housing and increase access is to enable state and local authorities to make decisions that are best suited to the needs of their communities and residents.

Housing experts say that’s a fundamental misinterpretation. First of all, the rule is “agnostic,” says Solomon Greene, a senior fellow at the Urban Institute, who previously worked at HUD. It empowers local governments to use data, involve the community, and improve access to housing and opportunity in all neighborhoods the way they see fit. That could mean preserving affordable housing in gentrifying area, or investing in infrastructure in distressed area, or providing more vouchers, depending on the context. “The HUD rule reflects the broader diversity beliefs in the housing field that there’s no clear answer as to what is the best use of a federal dollar,” Greene says. “It is the opposite of a one-size-fits-all model, which is how it's been rebranded.”

What detractors take issue with, it appears then, is not this particular AFFH rule, but the legislation it honors: the Fair Housing Act. Attempts to build affordable housing in predominantly white neighborhoods has always been met with coded racial backlash, by both liberals and conservatives. The straw man argument against the AFFH is just the meta-version of that.

Indeed, arguments against school busing programs and those against furthering fair housing both share an implicit assumption: that racial segregation is merely an expression of innate human preferences. That’s simply inaccurate. Intentional policies at every level of government are largely responsible for funneling black and brown people into certain neighborhoods—and still are. Any choice in the matter was usually not theirs.

The failure to purposefully reverse the effect of government-sponsored racial sorting is evident in Ferguson,  Flint, and Milwaukee. And, now, if the AFFH rule is rescinded, that tradition will continue.  

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