How will fair housing fare under Trump?

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The next housing secretary says he will continue the Obama administration’s fair-housing policies, even though he has called them “mandated social-engineering schemes” that will have unintended consequences.

Ben Carson, nominated by Donald Trump for secretary of Housing and Urban Development, objects to two Obama-era policies:

  • A rule that requires local communities to seek and destroy discriminatory housing patterns.
  • A legal principle that says plaintiffs don’t have to prove that housing discrimination is intentional; just that it is a result of policies that have a “disparate impact” on different groups of people.

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2 ways to define discrimination

In his confirmation hearing before the Senate’s banking committee, Carson said he objects to “people sitting around desks in Washington, D.C.,” telling local governments to “go and look for a problem” that looks like housing discrimination. He meant that as a criticism of Obama’s housing policies.

On the other hand, when a senator asked Carson if he will keep the policies, Carson replied, “I will be working with the local HUD officials and the communities to make sure that fairness is carried out.”

The National Fair Housing Alliance responded that “the fair housing community is more hopeful today about HUD’s continued support of fair housing after hearing the testimony of Dr. Ben Carson,” and said it would “hold Dr. Carson to these promises.”

But are Carson and the National Fair Housing Alliance talking past each other? Conservatives and liberals speak different languages when they discuss housing discrimination:

  • Conservatives say it’s your intention that matters: Whether you’re a landlord, developer or city council member, you’re in the clear if you’re not intentionally discriminating against anyone.
  • Liberals say it’s the impact that matters: If you can’t rent or buy a home where you want, maybe it’s because someone drew up policies that unintentionally keep you from living where you want to live.

A new fair-housing rule

Obama’s fair-housing policy arises from a long-ignored passage in the Fair Housing Act.

The law, passed in 1968, requires the housing secretary run the department “in a manner affirmatively to further” fair housing. But what does it mean to affirmatively further fair housing? For more than 40 years and through eight presidential administrations, that question went mostly unanswered. Then the Obama administration drafted the Affirmatively Furthering Fair Housing rule.

The rule says local governments and nonprofits should:

  • Figure out why neighborhoods are racially segregated, even if the segregation is unintentional — and even if no one is complaining about it.
  • Change the policies and customs that result in segregation to reduce or eliminate it.

Local vs. top-down control

It’s up to local officials to find discriminatory policies and fix them in a way that’s acceptable locally.

Fair-housing advocates seem to believe Carson is satisfied by this element of local control.

“He didn’t say that the rule was top-down, what he said is that he is opposed to top-down approaches,” says Lisa Rice, executive vice president of the Fair Housing Alliance. “So he is opposed to the government sitting in Washington and telling people what they need to do.”

But the find-and-fix requirement comes from Washington. That seems to be what Carson objects to.

As he said in his confirmation hearing: “They’re not responding to people saying that there’s a problem, they’re saying, ‘Go and look for a problem.'”

The Trump administration, with Carson in charge of the housing department, might approach housing segregation less proactively.

‘A tortured reading’

In a 2015 opinion piece in the Washington Times, Carson wrote that the Affirmatively Further Fair Housing rule relies on “a tortured reading of the Fair Housing laws to empower the Department of Housing and Urban Development to ‘affirmatively promote’ fair housing, even in the absence of explicit discrimination.”

He continued: “The new rule would not only condition the grant of HUD funds to municipalities on building affordable housing as is the case today, but would require that such affordable housing be built primarily in wealthier neighborhoods with few current minority residents and that the new housing be aggressively marketed to minorities.

“In practice, the rule would fundamentally change the nature of some communities from primarily single-family to largely apartment-based areas by encouraging municipalities to strike down housing ordinances that have no overtly (or even intended) discriminatory purpose — including race-neutral zoning restrictions on lot sizes and limits on multi-unit dwellings, all in the name of promoting diversity.”

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Skeptical of disparate impact

In the same column, Carson criticized a Supreme Court decision that upheld “the use of ‘disparate impact’ analysis in determining whether municipal housing policies have a racially discriminatory effect, whether intended or not.”

In that legal case, fair-housing proponents in Texas complained that housing vouchers in the Dallas area were disproportionately available in minority neighborhoods, making it difficult for families to move into non-minority neighborhoods.

The Supreme Court ruled that the fair-housing plaintiffs could challenge the local housing authority’s housing voucher policies on the grounds that they had a disparate impact on minority families. The plaintiffs wouldn’t have to prove that the housing authority’s policies were intentionally discriminatory.

“Fair housing advocates saw this as a victory, but as with other mandated social-engineering schemes, the sort of unintended consequences Justice Samuel Alito alluded to in his dissent lurk in the shadows,” Carson wrote in his Washington Times opinion piece.

For example, he wrote, New York City might be prevented from building sorely need affordable housing in minority neighborhoods.

In the confirmation hearing, Sen. Bob Menendez, D-New Jersey, asked Carson if he is committed to affirmatively furthering fair housing.

But Carson’s response was about something different: the “disparate impact” ruling.

“This is been a judgment passed on by the Supreme Court,” he said. “It has become the law of the land and of course, if confirmed, I will enforce it.”

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