HUD is Quietly and Successfully Abandoning Fair Housing Laws

HUD hides in the background (dbking)

HUD hides in the background (dbking)

It’s easy to look at the chaos in the Trump Administration and think that nothing is getting done.  The nauseating palace intrigue, the darkening Russian investigation, and the shocking and incompetent healthcare process don’t paint the picture of a focused, on-task presidency.  For the most part this is correct, but it belies the fact that in certain areas of policy, the administration is following through on its anticipated initiatives. 

Two weeks ago, after 10 previous reviews were rejected, HUD settled with Westchester County over issues or exclusionary zoning and racial segregation.  The result is a clear signal that the Trump Administration will not support fair housing laws. This could have a dramatic impact on millions of Americans impacted by the affordable housing crisis.

Westchester, like literally every suburb in the US, has a clear, demonstrated history of racially exclusive housing policy.  Before we focus on the particulars of Westchester, it’s important to understand that this was really the result of national policies – denying mortgages to black homeowners by red-lining minority-majority urban neighborhoods, legally sanctioning racially exclusive housing covenants, funding urban renewal projects that destroyed stable black neighborhoods to build highways to white suburbs – the national government is more to blame than any individual town or county. 

That is to say that our modern geography, which is more segregated now than ever, is not the product of organic migration, personal preferences, or even de facto segregation.  As Richard Rothstein points out brutally in The Color of Law, our country is the product of de jure segregation – a policy actively created, pursued, and supported by the federal government for decades.

Not everyone sees it that way, including the Supreme Court.  This matters a great deal because unless the courts view racial segregation in housing as de jure policy, they won’t mandate a Constitutional remedy to address it. Chief Justice Roberts, and others, have stated that because racial segregation happens through de facto policies and preferences, the government is not responsible.  That’s manifestly incorrect, but it is the default law of the land.

Which brings us back to Westchester.  The most pernicious way that American towns kept black families and other minorities out (and, it should be said, low-income households in general) was through zoning.  Before the Fair Housing Act passed in 1968 banning all overt racial discrimination in public and private housing, zoning generally included covenants that banned the resell of homes to non-white families. 

Afterwards, most zoning laws removed racial language but maintained implicit discrimination by maintaining strict laws against multi-family housing construction, instead favoring single-family homes.  Because of other racially oppressive social and economic policies, this policy naturally favored white families. 

In wealthy suburbs, like northern Westchester, that means that there are a small highly concentrated percentage of minorities in most of the suburban towns, mostly living in multi-family housing. In Sleepy Hollow minorities make up 65.5% of residents in multi-family housing but only 11% in single-family housing.  Outside of a couple of cities, the majority of towns in the the county are well over 80% white (while New York State is 58% white overall.)  Little effort has been made by any of these communities to change that.

That didn’t stop Westchester County from applying for federal grants for housing, which they received to the tune of $50 million in the mid-2000s.  On the application, they claimed to be “affirmatively furthering fair housing” which was an attempt to say that they were complying with the rule by the same name, that affirms voluntary consent to fair housing laws. This was quickly challenged in a lawsuit by the Anti-Discrimination Center in NYC. 

(I should also point out that Yonkers, the biggest city in Westchester, has also notoriously dodged fair housing laws for decades in an entirely separate case history. David Simon’s HBO serious “Show Me a Hero” examines the tragic human cost of the ordeal.)

In 2009, a federal court agreed with the ADC and said that Westchester had defrauded the federal government in several claims about affordable housing.  One of the most egregious claims stated that none of the municipalities in Westchester denied affordable housing to minority residents even though during the time period, not a single affordable housing unit was built in over a third of the communities. 

The court directed HUD and Westchester to work out a settlement both to make a record of impediments to affordable housing, to create a plan to address these impediments, and to commit to building new affordable housing units.  The county has been slow-walking to outright resisting the court order since.

Rob Astorino was elected the County Executive in Westchester largely by exploiting the backlash against the case and has been a vocal, and at times nearly hysterical, opponent to implementing fairer housing.  Since 2009, he has overseen 10 rejected reviews and has been successfully sued in court for failing to implement the court order. (He was on the short list to become HUD director when Donald Trump, no stranger to fair housing legal problems, was elected.)

Initially, the Trump Administration seemed to be continuing the policy requirements from the Obama Administration in general and specifically in regards to Westchester, but that all changed last week. HUD abruptly settled with Westchester, claiming they are making good on their attempts to comply.

This has come as a shock to many observers since the 11th proposal, although done by an outside firm rather than the county itself, is not materially different than any of the previous reviews that were rejected.  The only thing that is different is the new regional director of HUD for NY and NJ, Lynne Patton, who was a party planner who worked for the Trump Organization with no previous housing or government experience. The 11th proposal was approved the day after it was submitted.

It’s more complicated than simply arguing that Ms. Patton came in and squashed the issue. In fact, it’s unclear that she had much involvement with it and career HUD employees have been on record saying that the final two failed submissions were close to being accepted.  The difference seems to be focused on language around the impact of zoning on segregation. Basically, the county wanted to say that zoning had little impact on segregation, but HUD wanted that language to stay in. Of course the difference matters a great deal and the new language hints at the larger shift.

The bottom line is clear: In April of this year, HUD stated – with agreement from multiple federal courts –that Westchester was continuing to obstruct implementation of the court order. Now, a couple of months later, the matter is settled. 

There will be no more affordable housing built in these towns beyond the units agreed to in the initial settlement. There will be no larger attempt to undo the damage done by exclusionary zoning.  There will be no federal government pressure to comply with fair housing laws beyond what has been allowed already.

This comes in addition to statements by HUD Secretary Carson on July 20th about “reinterpreting” the affirmatively furthering fair housing rule.   Secretary Carson has echoed similar language from Rob Astorino about the “social engineering” demonstrated by HUD under the Obama Administration.  No wonder Mr. Astorino is so elated by this decision.

The Obama Administration did not do enough to acknowledge de jure segregation at the federal level and instead opted for smaller rule changes and enforcement directives.  The resistance even these smaller moves endured perhaps shows why the administration didn’t try for more.

But the consequences of not attempting to change the conversation about housing segregation at the national level are becoming clear under the Trump Administration.  It is easy to back off of enforcement when it doesn’t look like you’re backing off of enforcement.  It’s easy to undo fair housing measures when the purpose of those measure remain ambiguous legally.

You can see why Secretary Carson is not fighting to prevent the $6 billion in budget cuts on the table for HUD.  HUD doesn’t need the resources if it is going to be doing a lot less. When the housing crisis impacts virtually every county in the country, when segregation is worse than ever, this is the opposite of what we need from HUD.