Housing Advocates Are Suing Ben Carson and HUD

A group of Texas nonprofits will file a lawsuit against the department for failing to enforce an Obama-era fair housing rule.

Housing advocates plan to file a complaint on Tuesday against the U.S. Department of Housing and Urban Development and its secretary, Ben Carson, in an effort to put pressure on the federal government to enforce fair housing law.

The challenge calls on HUD to fully implement an Obama-era rule on Affirmatively Furthering Fair Housing—a critical yet historically neglected policy established by the Fair Housing Act of 1968. In accordance with the rule, communities across the country had begun drafting and submitting desegregation plans over the last two years. In January, HUD effectively suspended the rule.

At stake is official guidance directing the way that billions of dollars in Hurricane Harvey recovery funds will be spent in Texas, where the plaintiffs are centered. A decision on the so-called AFFH Rule will affect how Community Development Block Grants and other funds are allocated to municipalities nationwide.

In Texas specifically, restoring the AFFH Rule would likely require jurisdictions that receive disaster recovery funds to demonstrate that they will rebuild communities that are less segregated than they were before the storm.

More broadly, the challenge seeks to put pressure on the federal government to resume working to reverse racial segregation—work that had only just begun during the Obama era.

“Because of housing discrimination and residential segregation across the United States, where you live has a huge impact on how your life unfolds,” says Lisa Rice, president and CEO of the National Fair Housing Alliance, one of the plaintiffs behind the challenge. “How much money you’re going to earn, your life expectancy, your health outcomes, the type of credit you can access, whether your children will graduate from a good school, whether your children are able to attend college—in America, place is inextricably linked to opportunity.”

The complaint—filed on behalf of the National Fair Housing Alliance, the Texas Low Income Housing Information Service, and Texas Appleseed—casts the delay as an abrupt and unlawful violation of the federal Administrative Procedure Act. The challenge argues that Carson and HUD failed to follow the proper notice-and-comment rulemaking procedures or give a reason for the delay.

HUD issued a guidance in January delaying the uptake of the AFFH Rule to late 2020. The rule requires recipients of federal housing funds to draw up an Assessment of Fair Housing, a diagnosis of local segregation patterns as well as a plan to begin to resolve them. With the submission date pushed back after October 31, 2020, most jurisdictions would not have to submit their fair housing assessments until 2024 or 2025.

A spokesperson for HUD explained in January that 17 of the 49 Assessment of Fair Housing submissions it had received were rejected initially and returned for improvement—a failure rate that the department deemed to be a burden on communities. However, the plaintiffs argue that revisions were to be expected, part of the process in finally living up to the fair housing obligations set by law in 1968 but largely ignored over the next 50 years.

“We have seen some progress in Texas over the last decade,” says Madison Sloan, director of the disaster recovery and fair housing project at Texas Appleseed, a justice nonprofit based in Austin. “What HUD has done [by delaying the rule] is both deprive jurisdictions of clarity and guidance that they have asked for and send the message to jurisdictions that they no longer have to take these obligations seriously. That’s a real blow to progress toward equity and equal opportunity.”

Texas Appleseed and the Texas Low Income Housing Information Service (also known as Texas Housers) helped several Texas municipalities submit Assessments of Fair Housing, among them Lewisville, Fort Worth, Corpus Christi, and League City. For example, the plaintiffs worked with 19 jurisdictions and housing authorities in Hidalgo County to submit a regional Assessment of Fair Housing—which was rejected by HUD in December 2017 and returned with requirements for revision.

“Please note that this is only the first step in the process outlined in the rule and that you have an opportunity to modify and resubmit your AFH to HUD,” reads the rejection letter. That notice called for Hidalgo County to resubmit its assessment by March 12. In the meantime, though, HUD suspended the AFFH Rule.

“Getting localities in Texas to follow the Fair Housing Act has been a slog. There weren’t these tangible steps,” says Christina Rosales, Texas Housers’ communications director.

In March, Texas Housers filed another challenge against HUD over a longstanding complaint that the department has failed to enforce fair housing law in Houston. And in January—after HUD delayed a different rule that affected how federal housing aid is calculated—a coalition of housing advocacy groups successfully sued under the Administrative Procedure Act, forcing the department to adopt the more progressive aid formula (known as small area fair market rates).

In this case, too, the goal is to force the federal government to enforce federal law.

“The goal of the AFFH Rule is to eliminate housing discrimination and segregation in America and help ensure that everybody is treated fairly when they choose where they want to live,” Rice says. “Why HUD would want to stop that is beyond me.”