As civil rights groups line up in opposition to a new HUD rule, a legal strategy emerges.
On Monday, protesters in Chicago jeered Ben Carson, the secretary of the U.S. Department of Housing and Urban Development. A member of a grassroots seniors organization also interrupted his speech. It was Carson’s first public appearance since he issued a delay in a key rule for advancing fair housing and confronting racial segregation, and the resistance may only be getting started.
On Friday, 76 national organizations that focus on faith, civil rights, affordable housing, and social justice released a joint objection over HUD’s decision. The department, the statement said, is “abrogating its duty to carry out the mission Congress assigned it 50 years ago”—a reference to the Fair Housing Act of 1968.
Advocates have argued that Carson has effectively suspended the government’s obligation by delaying the Affirmatively Furthering Fair Housing (AFFH) rule set in place in 2015. This isn’t the first time that Carson has tried to postpone an Obama-era housing rule: A similar maneuver was struck down in federal court in December. Housing advocates are now hoping HUD’s move on the AFFH final rule will meet a similar fate.
“Needless to say, we are prepared to use every tool in our arsenal to fight HUD's suspension of this critical rule,” says Kristen Clarke, president and executive director for the Lawyers’ Committee for Civil Rights Under the Law. “We are looking carefully to see whether HUD violated the Administrative Procedure Act.”
The APA, a tweedy law on federal procedure and regulations, might provide the grounds for a legal challenge to Carson’s attempt to delay implementation of the fair-housing rule until late 2020. It’s happened once already: After HUD released a memo back in August pushing a different Obama-era housing rule out to fiscal year 2020, plaintiffs successfully argued that the maneuver violated the APA.
“This case is not about what is good housing policy,” reads the decision. “This case is about the rule of law—whether an agency effectively may suspend a duly promulgated regulation without observing the procedures or identifying relevant factual criteria that the law requires to effect such a change.”
That case concerns the formula for determining how federal housing aid is calculated. For the Housing Choice Voucher program—popularly known as Section 8—HUD has used a fair market rent standard for a city or metro area to determine the local value of a voucher. This has led to problems in many cities, where vouchers don’t cover the costs of rent in high-end neighborhoods, leading to concentrated poverty in areas with unsafe housing, bad schools, and little opportunity.
To address these negative outcomes, in November 2016, HUD adopted small area fair market rates, or SAFMRs, for calculating rents in individual ZIP codes rather than averaging rents across metro areas. The idea was to give families using vouchers a chance to move out of poor neighborhoods into more desirable places with better amenities. The Obama administration issued the rule to take effect on January 1, 2018. But in August of last year, HUD announced a two-year delay.
A Connecticut civil rights organization called the Open Communities Alliance and two residents who receive vouchers filed a lawsuit against HUD in October. The plaintiffs were represented by a number of civil rights groups, including the NAACP Legal Defense and Educational Fund, Poverty & Race Research Action Council, Lawyers’ Committee for Civil Rights Under Law, and Public Citizen—all of whom signed the January 5 statement condemning HUD’s delay on fair housing.
On December 23, Beryl A. Howell, chief judge for the U.S. District Court for the District of Columbia, granted the plaintiffs’ motion in OCA v. Carson for a preliminary injunction. This ruling required HUD to implement the rule on SAFMRs as of January 1 as planned. While the government has 30 days to appeal the decision, a HUD memo did not make that sound imminent or likely.
The decision in OCA v. Carson proceeded on several counts. The court concluded that while HUD may suspend the SAFMR for an area where it would adversely impact renters, HUD showed no such standard for the 23 metro areas where it delayed the rule (out of 24 in all). Carson’s more recent postponement followed some early trouble with a data-mapping tool experienced by about 17 of some 1,200 jurisdictions working on AFFH assessments.
In the December decision on vouchers, the court also determined that HUD lacked the authority to make such a delay, which it further deemed arbitrary and capricious. Finally, it showed that the suspension was likely to pose real harm to the two African-American women and the Connecticut agency who served as plaintiffs.
One of those women was a Chicago resident. Her personal testimony showcased how the rule change at HUD would make it easier for her to find affordable housing in a safer neighborhood with better education and opportunities for her child. If the dissatisfaction in Chicago is any indication, there are many more such stories out there. Plaintiffs may well emerge to take Carson right back to court.