Two years ago I wrote a post reflecting on the historical link between Dr. Martin Luther King Jr.’s legacy, his assassination, and the Fair Housing Act. I re-encourage you to check out the short film I mentioned there (it is worth a refresher watch!).
As I reflect on MLK Day this year, I realize a lot of things have changed in the Fair Housing landscape. At the start of 2015 I was nervous, but optimistic, about the Supreme Court’s pending ruling the case Texas v. Inclusive Communities Project, where the viability of disparate impact claims under the Fair Housing Act hung in the balance. Today, I can celebrate that the Supreme Court upheld (although weakened) such claims. The lower courts continue to work out the clarified fair housing disparate impact calculus set out by the ruling.
This year we may see even larger changes. While we cannot predict with accuracy how fair housing activities will change under a new administration, we have reasons for worry. Ben Carson, the Secretary-Designate for the Department of Housing and Urban Development, wrote an editorial when he was a candidate for President that called HUD’s Affirmatively Furthering Fair Housing regulations “failed socialism” and characterized affirmative fair housing action on the part of government as “dangerous.”
During his confirmation hearing Dr. Carson said that his words have been mischaracterized. If he is confirmed as Secretary we will soon find out. Given his prior words we must pay attention to the direction Dr. Carson chooses to steer HUD. For now, I have areas of concern for the future of the Fair Housing Act and the ability of advocates to rely on federal law and policy to further advance Dr. King’s vision of an equitable, integrated America.
At particular risk are the new policies set by HUD’s historic Affirmatively Furthering Fair Housing Rule (AFFH Rule). Finalized just under two years ago and pursuant to the Fair Housing Act, the AFFH Rule sets out new guidelines for communities to assess and address local barriers to fair housing.
HUD has provided impressively detailed nationwide data that local jurisdictions can use to analyze the state of fair housing. As 2016 was screaming to an end, I had the pleasure of working with the City of Philadelphia and a team of committed fair housing advocates refining the City’s Assessment of Fair Housing. The final plan should be available soon and the City’s commitment to the process was laudable. While federal enforcement mechanisms may change, local jurisdictions can and should continue to take their commitment to Affirmatively Further Fair Housing seriously. I encourage advocates to engage with their local governments to find out more about their Affirmatively Furthering Fair Housing process and commitment.
Another important issue and opportunity for immediate advocacy that fair housing advocates should pay attention to is the IRS’s recent Notice 2016-77 regarding the siting of affordable housing funded with Low Income Housing Tax Credits. This notice seeks comments on an important selection criterion that helps to ensure the LIHTC program can be utilized as a tool for revitalization in economically depressed neighborhoods and not a means to further exacerbate the segregation of affordable housing in these communities.
This is a particularly unique area for advocacy because of its home at IRS rather than HUD and the substantial overlap with Affirmatively Furthering Fair Housing requirements. Depending on what the IRS ultimately adopts, it could reshape siting decisions for affordable housing around the country.
Comments are due to IRS February 10, 2017. If you or your organization is interested in submitting comments, please contact me at jack.stucker@rhls.org.
As in 2015, there are still significant strides to be made before we can eliminate the presence of discrimination in our housing markets. At RHLS we continue to be inspired every day by our clients’ and partners’ efforts towards this lofty goal.