The Department of Housing and Urban Development is the federal agency charged with protecting vulnerable Americans from housing discrimination and ensuring that all people have equal access to housing opportunities. In recent years, HUD has taken important steps toward fulfilling this mission.
One major recent achievement is the “affirmatively further fair housing” (AFFH) rule. Under the rule, communities receiving HUD funding must examine local patterns of housing segregation and inequities and then create plans to effectively address them. By doing so, AFFH attempts to fulfill the goals of the Fair Housing Act, which banned overt housing discrimination in 1968 but has not yet succeeded in dismantling segregation and inequality in many cities and localities across the country. Research has demonstrated that racial and economic segregation creates disadvantages, not only in terms of economic factors, like employment and income, but also in access to high-performing schools and health care.
But HUD’s progress over the past eight years is now uncertain going forward because the man President-elect Trump nominated to lead the department, Dr. Ben Carson, is skeptical of its mission. Tomorrow, the members of Senate Committee on Banking, Housing, and Urban Affairs will have an opportunity to question Carson on his vision for the department’s future during his confirmation hearing. And if the nominee's writing is any indicator, policy changes are coming to HUD.
Dr. Carson has written that he opposes AFFH and other HUD programs designed to promote integration and address housing discrimination. In a 2015 op-ed in The Washington Times, Carson labeled AFFH as a “mandated social-engineering scheme” and an example of “failed socialism,” despite acknowledging the government’s role in “greatly reduc[ing] explicit discrimination in housing” through the Fair Housing Act.
In his op-ed, Carson also took issue with Texas Department of Housing and Community Affairs vs. Inclusive Communities Project, et al., a Supreme Court case in which the justices upheld the disparate impact standard. HUD also issued a rule in 2013 clearly laying out the disparate impact standard. So what is disparate impact? Under the Fair Housing Act, it means that a housing policy that appears neutral on its face can be deemed discriminatory if it unfairly burdens a particular group based on race, national origin, color, religion, sex, familial status, or disability, even if that impact was unintentional.
Disparate impact is extremely important for ensuring that housing policies are not unintentionally harming vulnerable communities and preventing them from obtaining housing. Housing discrimination against domestic violence victims is one example. Many properties have policies that say that any criminal activity can lead to the eviction of the household. Landlords have used these policies to evict people who are victimized by domestic violence in their homes. The ACLU has challenged this practice using disparate impact claims because most domestic violence victims are women and thus women are disproportionately harmed.
Another example might be an apartment complex that only accepts applicants who have full-time jobs. Regardless of the apartment manager’s intent, this policy bars disabled veterans and other people with disabilities who may not be able to work full-time, even if they can afford the apartment. Without effective enforcement by HUD of the disparate impact rule, many people will have little recourse in objecting to discriminatory policies like these that bar them from housing opportunities.
As HUD secretary, Dr. Carson would have the power to build on these achievements or to undermine them. Whether the future HUD secretary takes the mandate to secure housing equality seriously will have an enormous impact on millions of people — people of color, women, disabled people, poor people, and people who live in the thousands of jurisdictions that receive HUD funding. Members of the Senate Committee on Banking, Housing, and Urban Affairs need Dr. Carson to answer on the record whether or not he is committed to the agency’s fair housing mission.