Terry H. Schwadron
April 22, 2021
We’re seeing announced intentions from the Biden administration to restore anti-discrimination attitudes to the nation’s housing.
A series of regulation changes set aside under the Donald Trump administration are being brought back as part of a promised campaign to address systemic racism.
But much as with the gap between intention and execution in immigration, climate or even the broadened view of infrastructure, we’re not sure exactly what the Housing and Urban Development is going to do practically to eliminate housing inequities. Besides publishing some general rule changes in accord with early executive orders, we await definitions from Housing Secretary Marcia L. Fudge. Aid for black homeownership has been included in the omnibus infrastructure proposals sitting before Congress.
In the last couple of weeks, Fudge moved to reinstate fair housing regulations on two fronts.
One would reinstate a 2013 that had codified a decades-old legal standard known as “disparate impact” of bans on various landlord and construction practices used to background selected tenants, as well as a 2015 rule requiring communities to identify and dismantle barriers to racial integration or risk losing federal funds.
Both were posted by the Office of Management and Budget signaling that the rules have been accepted for review to take hold in 90 days. The regulations don’t say these are about racial disparities, but, realistically, that’s exactly the reason for them.
Clearly, housing is seen as central as a path to education, environment, health and wealth, all avenues disproportionately locked to Black citizens. Trump used these rules, among others, to make a big deal about protecting suburbs from having to consider affordable housing. Suburbanites would “no longer be bothered or financially hurt by having low-income housing built in your neighborhood,” Trump had bragged.
The Former Administration
Under Trump, former Housing Secretary Ben Carson was also a skeptic of using government power to remedy such inequality. Carson rolled back fair-housing rules, cut fair-housing budget and staff and set aside investigations into bias by banks, real estate companies and developers. As a presidential candidate himself, Carson had decried a federal effort to desegregate American neighborhoods as “failed socialist experiments.”
Though home insurance and mortgage companies had fought these rules over many years, that opposition had begun to fade last year over the national reckoning about the death of George Floyd. But Carson and Trump had gone ahead anyway.
Restoring the two rules will give the Biden administration the legal room to halt such practices as requiring tenants to undergo a criminal-background check, prohibiting the construction of multifamily housing and using artificial intelligence to predict creditworthiness.
The rule changes will make it easier to require affordable units in new housing and to fight discriminatory mortgage and zoning rules. Under threat of penalty, lenders could be forced to originate loans based on objective criteria that do not discriminate.
The two rules are seen as integral to the enforcement of fair-housing rules based on eliminating factors of race, color, national origin, religion, sex, familial status and disability in housing.
Under the 2013 HUD rule, for example, a practice or policy becomes discriminatory if it “actually or predictably” results in a disparate impact on a protected group or perpetuates segregated housing patterns — though the Trump group argued that perpetuation of segregation alone was not a violation of federal housing law.
Nevertheless, we have yet to see a spelled-out, practical approach to what to expect next.
Behind the Rules
Clearly, Team Biden sees changes in housing as important as race-balancing moves in education, environment and public health.
Studies have found that children growing up in racially segregated, low-income neighborhoods are more likely to attend poor schools, leading to lower college attendance and future earnings; increase exposure to more crime and more forceful policing; subject them to bad health effects from environmental toxins and a lack of access even to groceries selling fresh food.
Decades of housing discrimination, including in mortgage lending, have suppressed Black homeownership and perpetuated racial economic inequality, resulting in a White-Black wealth gap of nearly 10 to 1, studies have concluded. The Supreme Court supported that view in a 2015 decision.
Congressional Republicans have expressed concerns about restoration of requirements that put undo time-consuming requirements on home builders and cities. Progressives see these rules as minimum requirements and want more, including, for example, assurances that any road projects approved will not cut through existing minority neighborhoods, as had been a pattern in the past.
Biden’s released jobs and infrastructure plan proposes $213 billion for housing programs centered on racial equity.
HUD last year received more than 7,700 complaints alleging discrimination, according to the agency. The highest number of complaints pertained to housing discrimination on the basis of disability and race. The agency said it also received many complaints alleging lending discrimination as well as unfair treatment of female tenants facing sexual harassment.
Team Biden seems to want to act here, but we don’t know the actual program.