Local housing officials from both Democratic and Republican counties saw the rule as a rigid, burdensome directive; many were confused about how to comply with its complex requirements.
“Our biggest problem with this was that a one-size-fits-all approach is not appropriate,” said Jennifer Eby, community and resource services manager for Douglas County, a Denver suburb. “It was, from our perspective, very burdensome.”
The resistance to the rule suggests Biden will face obstacles even from some of his own allies over the more dramatic plans for his presidency, which include everything from overhauling environmental regulations to reviving the union movement.
Yet this case touches a special nerve because the Black and Hispanic home-ownership rate is so low and minorities are often relegated to substandard housing. The Affirmatively Furthering Fair Housing rule was intended to help remedy that, and Trump’s opposition to it sparked charges of racism.
The rule would have required local jurisdictions to actively track and address patterns of poverty and segregation with a checklist of 92 questions — or else lose access to federal housing funds.
Critics decried the process as both onerous and costly, an argument made by Trump’s Housing and Urban Development Secretary Ben Carson — the only Black member of his Cabinet — when he rescinded the rule. But local government officials and public housing authorities were also among those complaining.
While Trump framed the issue as a Democratic plan to force low-income housing down the throats of suburban residents, the concerns of critics about the rule largely fall under two broad complaints: that the directive from Washington, D.C., is too rigid to allow for local input and differences among jurisdictions, and that it is so complicated that compliance often requires outside help.
Several left-leaning cities, including Los Angeles and St. Paul, Minn., complained of having to hire pricey consultants to navigate the rule’s complex requirements.
Housing officials in other states voiced similar concerns with the top-down approach. A group representing over 75 public housing authorities in California criticized the original rule’s “highly prescriptive framework” in a public comment on a proposal to revamp the rule.
“There also was no additional funding that was put into it,” Eby said. “So there’s a lot of extra analysis to do, and a lot of work to put in and no new funding to do it. When that happens, you’re essentially taking money from services.”
Eby also has concerns with the list of “contributing factors” to housing segregation that the rule requires local jurisdictions to track and make progress on addressing. For one thing, she said, the criteria for making progress weren’t clear. But the factors themselves were also broad, she said.
“In a lot of ways, the contributing factors that they’re asking communities to look at are not necessarily vectors that are at all under their control,” she said, pointing to factors like transportation and school quality.
Ultimately, Douglas County commissioners decided it wasn’t worth the possible penalties and compliance burdens. In 2016, the county pulled out of HUD’s Community Development Block Grant program — forgoing about $750,000 a year in federal funding — as a result of concerns about ceding control over local decision-making, despite easily passing earlier fair housing assessments.
Biden’s transition website lists racial equity as one of four key issues he will focus on immediately — alongside the raging pandemic, economic collapse and climate change. And housing advocates who have pressed their case with Biden’s HUD landing team say they’re confident the incoming administration believes reinstating the 2015 rule is an urgent priority. The Biden transition team didn’t respond to a request for comment.
The confusion over the rule — and what reinstituting it will look like — comes as the Black homeownership rate already lags behind that of white people by about 30 points. Lingering effects from the economic crisis could drive it still wider, exacerbating longstanding inequities caused by decades of government-led segregation.
“Blacks and Latinos are more likely to live in health deserts with fewer health care facilities, dentists, primary care physicians,” said Lisa Rice, president and CEO of the National Fair Housing Alliance. The 2015 rule “was designed to fix all of these structural issues. And instead of enforcing AFFH, Trump has eviscerated it.”
The data and assessment tools folded into the original Obama rule may need to be “updated,” she said, but the regulation itself is critical to addressing systemic racism.
“It was clear from Day One that the Trump administration did not understand fair housing, and I personally tried to educate key leadership at HUD about fair housing issues,” Rice added.
Carson suspended the regulation in 2018 before replacing it with a weaker version in July. Because the 2015 rule was already on the books, the incoming administration can simply revoke the replacement regulation and revert to the original without having to go through the long process of promulgating a new rule.
The hard part will be implementing it. Critics stressed that they support the rule’s goals — they just want something workable.
HUD in 2018 withdrew a key computer tool that local governments were supposed to use to analyze patterns of segregation, concentrated poverty, residential health hazards and disparities in access to things like transportation, schools and employment opportunities. They were supposed to use that data to draft an “Assessment of Fair Housing” plan addressing discriminatory barriers, which they would then submit to HUD.
Many areas had trouble with the tool. For the 49 jurisdictions in the first group to submit fair housing assessment plans between October 2016 and December 2017, only 37 percent were initially accepted, according to HUD. While another 28 percent of the plans were accepted after jurisdictions amended them with HUD’s technical assistance, 35 percent were ultimately rejected.
Local public housing agencies had hoped that HUD would streamline and improve the tool, which will need to be revived and updated.
“The new administration definitely needs to get a hold of what has been done to gut this thing,” said Marla Newman, director of community development for Winston-Salem, N.C.
Newman said Winston-Salem was “one of the few jurisdictions that actually got a plan approved” after hiring a consultant to help draft it. HUD was making progress on tweaking the rule to make it more accessible before the Trump administration withdrew it, she said.
“We were starting to get good mapping tools — we were really on a path to a good place — and we need to pick back up where the [Obama] administration left off” with the rule, Newman said.
In the meantime, plenty of jurisdictions will have to shell out money they can hardly spare to consultants to tap desperately needed federal housing funds.
“The stakes in developing an acceptable AFFH are high, as jurisdictions face a reduction in funding if they fail,” the Seattle Housing Authority told HUD in 2018, urging the agency to consider providing support to public housing agencies and “taking PHA size into consideration in its expectations and requirements.”
The National Community Development Association, a bipartisan nonprofit representing over 400 local government agencies, also criticized the original rule’s “cookie-cutter approach” in a public comment submitted in March.
It’s a problem “for the small cities that get a small amount of [block grant] funding every year,” association Executive Director Vicki Watson said. “There’s quite a few cities that get less than $500,000 a year but they have the same requirements as a New York or a San Francisco — there’s a disconnect there.”
“We support affirmatively furthering fair housing, but we think it should be more flexible,” she added. “There just needs to be more funding and more flexibility, particularly for smaller cities.”