Congress should reject gutting fair housing rule with riders

The shared values of diversity, inclusion, and access to opportunity are central to who we are as a nation, but, all too often, our ability to fulfill that vision of America is undermined by our failure to take thoughtful, strategic action to promote fair housing choice. In July, the U.S. Department of Housing and Urban Development (HUD) took a historic step toward empowering communities across the country to tackle housing inequality when it released its long-awaited Affirmatively Furthering Fair Housing rule. Unfortunately, some in Congress have seized upon the urgent need to avoid a government shutdown to try to insert a rider in the omnibus appropriations bill that would prevent HUD from implementing this critical fair housing rule. This rule is a major step forward in promoting inclusive communities that makes us strong and all legislators who are committed to these values must stand up for communities across the country that urgently need this rule and reject any attempt to gut the rule through this rider.

{mosads}Congress passed the Fair Housing Act of 1968 at a time of great strain in this country’s history in order to avoid what Supreme Court Justice Anthony Kennedy called in a landmark fair housing case decided in June the “grim prophecy” of a commission appointed by President Lyndon Johnson that the United States was “moving toward two societies, one black, one white – separate and unequal.” Since its passage, the Fair Housing Act has included an obligation on the secretaries of all federal agencies administering housing and community development programs, and on their grantees, to take proactive steps to avoid the realization of that prophecy. , While this provision of the Act requires HUD grantees to use their planning processes to inform strategies to overcome residential segregation for decades, adherence to that requirement has been sporadic.

The new fair housing rule is designed to clarify and modernize the process by which local and state agencies are required to assess what structural barriers are restricting housing choice in their communities and to formulate strategies for overcoming those obstacles. Particularly important is the rule’s focus on robust community engagement in the planning process, recognition of the need to balance competing policy priorities, and commitment to using the most robust data available to ensure that policies that affect housing choice are empirically grounded. HUD has taken a common sense approach to ensuring that its grantees comply with the Fair Housing Act’s affirmative duty.

It is deeply ironic that Westchester County, New York has become a rallying cry for opponents of HUD’s attempts to implement the Fair Housing Act and realize our shared values as that county has suffered from its own intransigence and has benefited from extreme patience on the part of HUD. In particular, Westchester County has repeatedly failed to analyze the effect that zoning and land use restrictions in affluent, predominantly white communities have on where African American and Latino households reside and to take action to overcome problematic barriers that such an analysis would have uncovered. Exclusionary zoning that limits the housing opportunities available to people of color and perpetuates residential segregation has long been illegal under the Fair Housing Act while zoning that excludes multi-family housing is verboten under the Due Process Clause of the New York State Constitution. Consistent with the highly segregated nature of Westchester County’s housing market, seminal cases involving the application of both laws to exclusionary zoning have arisen in the county. HUD’s new rule provides a process that is designed to prevent conflict from ever getting that far.

HUD’s new Affirmatively Furthering Fair Housing rule will provide state and local agencies with the tools identify and address the barriers that are holding their communities back. Working together, a wide variety of stakeholders can advance our shared values of diversity, inclusion, and access to opportunity by addressing structural barriers to fair housing choice. In some communities, based on local conditions, exclusionary zoning may be one such obstacle, but it is critical that legislators recognize that HUD has crafted an approach to fair housing planning that is driven by local conditions and priorities, as well as the overarching goals of the Fair Housing Act, and is not prescriptive. Passage of an omnibus appropriations bill without a rider blocking implementation of the new fair housing rule would stand as a ringing affirmation of our shared values.

Rich is the co-director of the Fair Housing & Community Development Project at the Lawyers’ Committee for Civil Rights Under Law. Silverstein is an associate counsel in the Fair Housing & Community Development Project at the Lawyers’ Committee for Civil Rights Under Law.


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