For the past few months, yet another legislative pillar of the country’s civil rights era, the Fair Housing Act, has been in the Trump administration’s crosshairs. First, in the autumn, the administration unveiled plans to make it harder for tenants, mortgage recipients and community organizations to sue banks and other financial institutions for using algorithms that end up having discriminatory impacts on the basis of race, religion, national origin and other protected categories. Then, a few weeks ago, HUD unveiled additional rule-rewrites diluting the obligation of cities to both develop public infrastructure in poor neighborhoods of color and also to build affordable housing across a range of locales rather than concentrating it all in a handful of places.
While the administration is trying to pitch these as simply administrative tweaks, in fact they have the potential to gut the force of the country’s fair housing rules — much as the Supreme Court’s 2013 decision rolling back parts of the Voting Rights Act ended up largely gutting protections that had been in place for more than half a century.
The Fair Housing Act (FHA), first passed in 1968 and expanded in scope in the decades following, aims to prevent deliberate discrimination in housing-related matters as well as to prevent practices that have a “disparate impact,” resulting in discriminatory outcomes even if the individuals involved weren’t intentionally trying to harm particular groups. An example might be bank lending criteria or insurance criteria that in practice make it harder for people in majority-Black neighborhoods to secure mortgages. The FHA also aims to “affirmatively further fair housing” by requiring communities to improve public infrastructure — schools, transit systems, roads and so on — in neighborhoods where most residents are people of color, and also to support the development of affordable housing in a wide variety of locales within a city.
Over the past few months, Ben Carson’s Department of Housing and Urban Development (HUD) has moved to undermine both of these requirements. In 2019, HUD published new regulations intended to gut the “disparate impact” part of the FHA. The new rules made it far harder to establish the liability of cities or of financial institutions, and were intended to essentially shield the real estate and financial industries from being held accountable for all but the most egregious of discriminatory actions.
The ACLU slammed the new rules, arguing that “they would make it harder to challenge forms of algorithmic discrimination — such as unjust tenant-screening tools or discriminatory marketing schemes.” In the new reality, if algorithms end up producing housing discrimination, no human beings are to blame, and machines can’t be held to account.
Led by California’s Xavier Becerra, the attorneys general of 21 states plus Washington, D.C., wrote a stinging public letter in October opposing HUD’s revised regulations and averring they ignored the growing gaps in home-ownership between white and nonwhite populations in the country and would lead to an even more skewed and unfair housing market.
HUD seems unbowed in the face of this criticism. On January 7, the agency published another set of rules, which, if implemented, will weaken 2015 enforcement mechanisms regarding the second FHA requirement: that communities develop housing designed to reduce segregation in their jurisdictions. At the same time, these new rules would lower penalties leveled against cities found not to be working to end segregation. In an example of the double-speak so favored by the Trump administration when weakening regulatory protections, they titled this change the Affirmatively Furthering Fair Housing Rule.
The new rules haven’t yet been sent forward to the federal register, at which point a 60-day public comment period will commence, but advocacy groups are already gearing up for a fight.
Shortly after HUD announced the proposal, the National Fair Housing Alliance said the plan would replace the 2015 requirements “with a new rule that does not address segregation or provide clear standards or a format to help jurisdictions and PHAs [public housing authorities] identify and cure housing discrimination.”
It’s not as if the need isn’t there. In fact, these weakened rules come following an uptick in housing discrimination complaints: in 2018, more than 31,000 complaints were filed, up 8 percent from the previous year.
Administrations set a national tone. The Trump administration has made it abundantly clear that it doesn’t regard the enforcement of civil rights rules as a priority — indeed, that it regards them as a pesky hindrance to economic growth. It is no surprise, then, that more landlords, lending institutions and public housing agencies are ignoring — or, worse, facilitating — prejudiced decisions.
But housing discrimination is more than an inconvenience. It is a huge scar on the national psyche and the physical landscape.
In 2018, a coalition of housing and civil rights groups sued Bank of America for failing to maintain the condition of repossessed homes in majority-Black and Brown neighborhoods — literally letting entire neighborhoods get run down through bankers’ neglect.
In 2017, the city of Philadelphia successfully sued Wells Fargo for steering Black and Brown borrowers toward riskier loans than those they negotiated with white borrowers, which led to catastrophic economic consequences and a wave of foreclosures throughout nonwhite neighborhoods.
In 2013, Brandeis University researchers found that roughly half — yes 50 percent — of the wealth of African American families was stripped by the Great Recession, a disproportionate amount due to the stunning collapse in Black home ownership during these years. Other studies have shown that a far higher percentage of Black homeowners than white homeowners had to give up ownership and start renting again following the 2007-2008 real estate market implosion.
And now the Trump administration and HUD are saying that none of this matters and that the bar for proving discrimination will be raised ever higher.
When the Supreme Court dismantled the Voting Rights Act, the entirely predictable result was that one jurisdiction after another made it harder for particular groups of people to vote. Now that Trump and Housing Secretary Ben Carson have made it clear they don’t really care about enforcing anti-discrimination housing laws, an already bad situation will, in all likelihood, be made even worse. It’s yet another ugly, racist example of what Trump really means when he says that he wants to “Make America Great Again.”