MAKE SUBURBIA WHITE AGAIN: THE TRUMP ADMINISTRATION’S

MAKE SUBURBIA WHITE AGAIN:

The Trump Administration’s Attempt to Undo Fair Housing and the Biden Administration’s Opportunity to Rectify AFFH

RACHEL EBERHARD

Rachel Eberhard is the founder and managing principal of Apiary Community Consulting, a consultancy that offers a special focus on creating plans and strategies that address local needs and priorities, particularly around housing. Prior to forming Apiary, Ms. Eberhard worked in acquisitions with a national low-income housing tax credit (LIHTC) syndication firm and consulted with mission-driven organizations, local communities, and federal agencies in Washington, D.C.

ABSTRACT

Problem Approach & Findings

Until recently, many conversations around the 2015 Affirmatively Furthering Fair Housing (AFFH) rule have been limited to those involved with fair housing efforts and affordable housing policy. Under the AFFH rule, communities receiving federal assistance are required to take meaningful action to undo decades of federal, state and local discriminatory policies and practices that resulted in segregated communities.

In July 2020, the Trump Administration announced it was revoking AFFH and replacing it with the Preserving Community and Neighborhood Choice rule. The new rule effectively gutted the only meaningful guidance since the Fair Housing Act of 1968 for how states and localities should examine residential segregation or impacts of local actions on protected classes.

Implications

Shortly after inauguration in 2021, the Biden Administration ordered HUD to immediately assess the impacts of recent Department of Housing and Urban Development (HUD) changes to the AFFH and disparate impact rule and to then take actions to combat racially discriminatory impacts. Looking ahead, improvements to any reinstated mandate, such as incentivizing collaboration, supporting state jurisdictions and their rural communities, leveraging effective community engagement, and strengthening enforcement, could help further fair housing.

BACKGROUND Until Summer 2020, many conversations around the 2015 Affirmatively Furthering Fair Housing (AFFH) rule have been limited to those involved with fair housing efforts and affordable housing policy. Under the AFFH rule, communities receiving federal assistance are required to take meaningful action to undo decades of federal, state, and local discriminatory policies and practices that resulted in segregated communities.

In July 2020, the U.S. Department of Housing and Urban Development (HUD) announced it was revoking the 2015 AFFH rule and replaced it with the Preserving Community and Neighborhood Choice rule. The new rule effectively gutted the only meaningful guidance since the Fair Housing Act of 1968 for how states and localities should examine residential segregation or impacts of local actions on protected classes.

What opportunities and challenges did AFFH provide related to HUD and Fair Housing before it was eliminated? With President Biden’s promise to reinstate AFFH, what can a new administration do differently to further fair housing?

ORIGINS OF AFFH Events throughout 2020 showed America that housing justice and racial justice are inextricably linked, and affordable, accessible housing as well as housing choice serve as a foundation for just and equitable communities. There is considerable evidence that all residents benefit from diverse, inclusive communities. Research by Chetty et al. (2016) shows that access to stable, affordable homes in communities of opportunity has a broad and positive impact that leads to better health and educational outcomes as well as higher lifetime earnings, particularly for children raised in high-opportunity areas. Their work also indicates that moves by lower-income residents to higher-income neighborhoods not only reduce the intergenerational persistence of poverty, but also ultimately generate positive returns for taxpayers (Chetty et al. 2016).

Despite this evidence, President Trump falsely claimed that AFFH would lead to decreased property values and increased crime in suburban communities (Trump 2020). It’s important to recognize the significance of the timing of the mandate, which was issued just a few months before the 2020 presidential election, during a time of racial injustice reckoning, and was aimed at stoking fear among suburban white voters.

Historically, racial and ethnic segregation have been systematically perpetuated by real estate professionals and landlords, racial covenants, and redlining practices. The Fair Housing Act of 1968 (FHA) prohibited racial discrimination in housing and established the legal duty to affirmatively further fair housing, which requires HUD and localities receiving federal assistance (or grantees) to actively address housing discrimination and segregation and to foster inclusive communities.

When it was signed into law, however, the FHA did not include any regulations as to how HUD and its grantees should implement this legal requirement. Segregated housing patterns continued to go unchecked for half a century until July 2015, when the Obama Administration adopted the AFFH rule, which provided requirements to evaluate barriers to fair housing and identify goals on how to foster more inclusive communities. Under the AFFH mandate, grantees must take meaningful actions to undo decades of discriminatory federal, state, and local policies and practices that created racially segregated, underresourced communities. Grantees were also required to address local policies that illegally discriminate against residents.

The 2015 AFFH rule did not mandate specific outcomes; rather, it established basic parameters to help guide public sector housing and community development planning and investment decisions. The rule encouraged a more engaged and data-driven approach to assessing fair housing and planning actions. It also established a standardized fair housing assessment and planning process to give jurisdictions and public housing authorities (PHAs) a more effective means to affirmatively further the purposes of the FHA.

The 2015 AFFH rule also established a new protocol for an Assessment of Fair Housing (AFH) process, which was a much-needed improvement from the previous Analysis of Impediments (AI) process that standardized the methods and data that jurisdictions use to analyze their community’s housing (GAO 2010). The formation of the new protocol stemmed from a 2010 study that found that AIs were ineffective, noting that “HUD’s limited regulatory requirements and oversight may help explain why many AIs are outdated or have other weaknesses” (GAO 2010).

BENEFITS AND CHALLENGES OF AFFH One benefit of the AFFH rule was the shifting of specific actions away from HUD and towards state and local actors. Many challenges related to housing disparities, including issues like climate change and measures of well-being, also required coordinated planning efforts at the state and local level. Prior to AFFH, these approaches were driven by HUD’s fair housing office. The rule made clear that the effort needed to be broadened to include full participation by state and local actors (O’Regan & Zimmerman 2019). One-sizefits-all approaches were replaced with more locally driven and tailored plans that now involved private entities and nonprofit groups.

HUD also focused on providing data to all jurisdictions and their surrounding regions, including data on segregation, the location of subsidized housing, and disparities in measures of opportunity, to facilitate AFFH analysis. This process improved the partnership between HUD and its grantee jurisdictions, especially among those without robust data capabilities. AFFH also encouraged collaboration among jurisdictions through jointly submitted AFHs (O’Regan & Zimmerman 2019). Many in the Obama Administration also believed in the importance of community engagement within the fair housing process. AFFH required a robust community engagement process to inform the development of a successful AFH. However, the capacity of local communities to use and disseminate information related to the fair housing planning process varied greatly, particularly among low-income communities of color (O’Regan & Zimmerman 2019).

Efforts to implement the AFFH provisions met a host of political, programmatic, and other roadblocks that prevented significant advances and led to what some commentators have termed a “fundamental imbalance in [the act’s] statutory missions” (O’Regan & Zimmerman 2019). As HUD moved into a more collaborative role, challenges persisted in supporting jurisdictions with the data and technical assistance needed to comply with the mandate. Despite language encouraging collaboration and joint submission, the rule did not explicitly create assessment tools or incentives for actors to work together.

One example of how AFFH fell short involved small towns and rural areas within geographies called non-entitlement jurisdictions. In states where non-entitlement jurisdictions encompass a majority of the state’s geographic area or population, such as Mississippi, HUD did not require small towns and rural areas to conduct their own fair housing analysis or to formulate a fair housing plan (Hensley, 2019). As a result, HUD failed to ensure that these state-funded jurisdictions were affirmatively furthering fair housing.

Communities also raised concerns about the lack of enforcement with the AFFH rule, and wondered if HUD could provide the necessary support while also holding jurisdictions accountable for failing to adhere to the new process (O’Regan & Zimmerman 2019). Additionally, the process for handling fair housing complaints was slow, in part because enforcement officials at the Office of Fair Housing and Equal Opportunity (FHEO) regional centers struggled to establish best practices because of a failure to identify and formalize processes (GAO 2010).

Ultimately, HUD struggled to establish a balance between providing jurisdictions with a useful planning tool while also having teeth necessary for accountability. Without enough completed assessments to acquire enough on-theground experience, HUD continued to navigate the space between aspiration and full realization until the Trump Administration announced AFFH’s suspension.

AFFH UNDER THE TRUMP ADMINISTRATION Any progress toward more effective processes and policies to further fair housing was first interrupted in 2018, when the Trump Administration suspended the implementation of the AFFH rule and directed grantees to return to the AI process. Then, in July 2020, the Trump Administration announced it was entirely terminating the 2015 AFFH rule without public comment (HUD 2020). Initially, HUD Secretary Ben Carson stated, “After reviewing thousands of comments on the proposed changes to the [AFFH] regulation, we found it to be unworkable and ultimately a waste of time for localities to comply with, too often resulting in funds being steered away from communities that need them most” (O’Donnell & Lippman 2020).

In its place, HUD instituted a new rule, Preserving Community and Neighborhood Choice, that lowered the bar for communities and grantees to show that they were pursuing fair housing. Preserving Community and Neighborhood Choice defined fair housing broadly, and defined “affirmatively further fair housing” to mean any action rationally related to promoting any of the above attributes of fair housing. This represented a significant shift away from any efforts at residential desegregation and failed to adequately address barriers to opportunity. According to the National Low Income Housing Coalition (NLIHC), this could mean that “to ‘affirmatively further fair housing’ a city could merely donate one abandoned building in a disinvested neighborhood to a developer to rehabilitate and rent to low-income households, some of whom might use Housing Choice Vouchers to make it affordable,” (NLIHC 2020b; FHEO 2020).

Shortly after the announcement, President Trump took to Twitter to frame the termination of the AFFH rule as a relief for suburbs who were “bothered or financially hurt by having low-income housing built in [their] neighborhood,” and repeated long held fallacies that low-income housing lowers property values and increases neighborhood crime (Trump 2020). The President’s tweets implied that the “Suburban Lifestyle Dream” is one where suburban communities do not have low-income housing built in them, which would mean largely excluding people of color and low-wage workers who work in those communities.

Separately, HUD announced a revision to the 2013 disparate impact rule, a legal doctrine that allowed individuals to show a housing policy or program has a discriminatory impact based on their race, national origin, sex, disability, family status, or religion, even if the policy or program appears to apply to everyone equally. Under the 2013 rule, disparate impact cases needed to meet a three-step burden shifting test. In the first step, a plaintiff makes an allegation that a defendant’s action or program has a discriminatory effect on the plaintiff. If the plaintiff is successful in establishing the facts in step one, the defendant offers a rebuttal that must show that the action or program was necessary to achieve a legitimate, non-discriminatory purpose. If the defendant accomplishes step two, the plaintiff must then show that the defendant could have reached the same objective with a less discriminatory action or program. The new rule shifted the responsibility to the plaintiff even more dramatically by only requiring the defendant to prove their program is non-discriminatory if plaintiffs could meet a five-step burden test. The changes raised the bar and aimed to make it harder to prove a disparate impact claim by victims and tipped the scale in favor of those accused of discrimination (NLIHC 2020a).

LOOKING AHEAD UNDER THE BIDEN ADMINISTRATION The AFFH rule served as a roadmap for communities to more effectively provide fair and equal access to safe and affordable housing. It applied to recipients of HUD funding—not individual homeowners in the suburbs— and held these recipients accountable for using taxpayer dollars fairly. An absence of intentional policies to undo the pervasive, structural racism in housing and hold

communities accountable would deeply impact families’ opportunities to obtain safe and affordable housing.

During his campaign, President Biden’s housing platform promised to roll back Trump Administration policies gutting fair housing protections—including the 2015 Affirmatively Furthering Fair Housing (AFFH) rule, the 2013 disparate impact rule, and the 2016 rule to provide Equal Access in Accordance with an Individual’s Gender Identity (NLIHC 2020a)—and to “vigorously enforce” these standards (Biden For President 2020). Additionally, there were calls for the Biden Administration to reinstate the three-part burden shifting standard originally implemented with the 2013 disparate impact rule.

President Biden’s team also laid out a lengthy platform that proposed to end “discriminatory and unfair” practices by pushing local governments to change discriminatory local regulations, including zoning policies that lead to racial and economic exclusion (Biron 2020). His platform also detailed a plan for investing $640 billion over 10 years so every American would have access to housing that is affordable, stable, safe and healthy, accessible, energy efficient and resilient, and located near good schools and within a reasonable commute to their jobs. The first step to achieving this, according to President Biden’s platform, is through ending redlining and other discriminatory and unfair practices in the housing market. Many of these promises can be more easily realized with a House and Senate controlled by the Democratic Party.

Shortly after inauguration, the Biden Administration ordered HUD to immediately assess the impacts of the Trump Administration changes to the AFFH and disparate impact rules and to then take actions to combat racially discriminatory impacts (Biden 2021). The early AFHs submitted in 2016 suggested that the rule provided some innovative approaches to fair housing that could be refined with time and experience (O’Regan & Zimmerman 2019). Looking ahead, the Biden Administration should consider improvements to any reinstated AFFH mandate, such as incentivizing collaboration, supporting state jurisdictions and their rural communities, leveraging effective community engagement, and strengthening enforcement. Prior to the rule’s suspension, HUD proactively provided feedback to grantee jurisdictions and received many joint AFH submissions that detailed coordinated planning efforts. HUD could require those agencies that submitted strong fair housing plans under the original rule to share best practices around a new version of the AFFH assessment tool (Ross 2021). Additionally, health, transportation, and education stakeholders can be brought in to create a more robust assessment to any revised rule. For example, the Environmental Protect Agency and Department of Transportation can help elevate green infrastructure and tie transportation to funding programs. By reviewing and refining these processes, a continuous learning loop can be built into the AFFH rule (O’Regan & Zimmerman 2019).

For non-entitlement rural areas and small towns, HUD can require states to provide more robust technical assistance and data for assessments and planning. Increased technical assistance and capacity building resources can allow HUD to better support non-entitlement areas to address systemic challenges and aggregate best practices. HUD can also use census block-level data as the basis for assessments, which would help small towns and rural areas address long standing patterns of segregation (Hensley 2019). Deepening the HUD database that incorporates both income and racial measures can provide substantial value to these communities and their fair housing goals.

Additionally, the AFFH rule can require a robust community engagement process aimed at greater inclusion. HUD can continue to establish guidelines for how to best develop meaningful community participation, especially in low-income communities and communities of color. AFFH can seek to address power imbalances by providing data and engaging with communities early in the process. Data from AFHs can provide examples of best practices for effective community engagement and be disseminated among grantee jurisdictions. HUD, via local stakeholders or agencies, can also provide residents with information from those who conducted the early AFHs and summarize which engagement methods were effective or ineffective (O’Regan & Zimmerman 2019).

Finally, the Biden Administration must work to develop an approach that allows federal, state and local agencies to hold bad actors accountable and support those achieving desired equity outcomes. HUD can develop stronger enforcement standards that provide the appropriate balance of discretion and accountability in the oversight of local agencies. HUD must also continue to evaluate workforce needs and human capital challenges within the Office of Fair Housing and Equal Opportunity and other programs (GAO 2010).

Allowing room for refinement in any fair housing process can help federal, state and local actors improve decision making and achieve desired results per the AFFH mandate. Fair housing advocates believe that it is possible to build upon the original rule and develop an approach to equitable planning that is consistent with what FHA set forth over 50 years ago, and the Biden Administration has the opportunity to do so.

REFERENCES

Biden for President. 2020. The Biden Plan for Investing in Our Communities through Housing. Joe Biden for President: Official Campaign Website. https://joebiden.com/housing/.

Biden, Joseph Jr. 2021. Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies. The White House. https://www.whitehouse.gov/briefingroom/presidential-actions/2021/01/26/memorandum-on-redressingour-nations-and-the-federal-governments-history-of-discriminatoryhousing-practices-and-policies/.

Biron, Carey L. 2020. “Biden Win Seen as ‘turning Point’ for Affordable Housing.” Reuters, November. https://www.reuters.com/article/us-usaelection-housing-trfn-idUSKBN27Q37T.

Capps, Kriston. 2020. “With Rule Changes, Trump Launches ‘an Attack on Fair Housing From All Sides.’” Bloomberg, September. https://www. bloomberg.com/news/articles/2020-09-09/how-hud-rewrote-the-ruleson-fair-housing.

Chetty, Raj, Nathaniel Hendren, and Lawrence F. Katz. 2016. “The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment.” American Economic Review 106 (4): 855–902. https://doi.org/10.1257/aer.20150572.

FHEO. 2020. Preserving Community and Neighborhood Choice. Federal Register. https://www.federalregister.gov/ documents/2020/08/07/2020-16320/preserving-community-andneighborhood-choice.

GAO. 2010. GAO-10-905 HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans. https://www.gao.gov/new. items/d10905.pdf.

Hensley, Desiree C. 2019. “Affirmatively Furthering Fair Housing in the Deep South: Obama’s AFFH Rule Won’t Make Rural American Less Segregated.” Virginia Journal of Social Policy and the Law 26: 45. HUD. 2020b. Secretary Carson Terminates 2015 AFFH Rule. HUD.Gov. https://www.hud.gov/press/press_releases_media_advisories/HUD_ No_20_109.

NLIHC. 2020a. Opportunities to End Homelessness and Achieve Housing Justice in a Biden Administration. https://nlihc.org/sites/default/files/ NLIHC_Biden-Transition-Memo.pdf.

———. 2020b. Trump Administration Final Rule Repealing AFFH Published in Federal Register. National Low Income Housing Coalition. https://nlihc.org/resource/trump-administration-final-rule-repealingaffh-published-federal-register.

O’Donnell, Katy, and Daniel Lippman. 2020. White House Scraps Fair Housing Rule as Trump Bids for Suburban Voters. POLITICO. https:// www.politico.com/news/2020/07/22/white-house-scraps-fair-housingrule-as-trump-bids-for-suburban-voters-379379.

O’Regan, Katherine M., and Ken Zimmerman. 2019. “The Potential of the Fair Housing Act’s Affirmative Mandate and HUD’s AFFH Rule.” Cityscape: A Journal of Policy Development and Research 21 (1): 87–98.

O’Regan, Kathy, and Ken Zimmerman. 2019. “HUD’s Affirmatively Furthering Fair Housing Rule: A Contribution and Challenge to Equity Planning for Mixed Income Communities.” What Works to Promote Inclusive, Equitable Mixed-Income Communities 5: 23.

Ross, Lynn M. 2021. New Deal for Housing Justice. Community Change. https://communitychange.org/wp-content/uploads/2021/01/New-Dealfor-Housing-Justice.Policy-Paper.Community-Change.1.2020.pdf

Trump, Donald J. 2020. Donald J. Trump on Twitter. Twitter. https://twitter. com/realDonaldTrump/status/1288509568578777088.

CONFLICT OF INTEREST: The authors attest that they have no financial interest in the materials and subjects discussed in this article.