On July 23 the Trump administration officially rolled back illegal Obama-Biden administration-era regulations that attempted to federalize nationwide control over zoning and land-use policies through greatly expanded interpretations of four obscure words in the original 1968 Fair Housing Act (FHA), namely calling for “affirmatively furthering fair housing.”
Those four words became the basis for inventively expanding upon a 170-page 1996 Clinton administration Housing and Urban Development (HUD) guidance policy that established a premise for the Obama-Biden administration’s 2015 “Affirmatively Furthering Fair Housing” (AFFH) rule, one that has given rise to numerous legal challenges.
To be clear, none of these lawsuits, nor the parties filing them, disputed legitimate merits of the original FHA intent or Clinton amendments to prohibit discrimination concerning the sale, rental and financing of housing based on race, religion, national origin, sex, (and as amended) handicap and family status.
FHA appropriately authorizes HUD to require state and local governments to certify compliance with fairness standards as an eligibility requirement to receive federal block grants used to support various broad-purpose programs, such as law enforcement, social services, public health and community development. Specific annual grant amounts are awarded according to a formula based on a community’s needs, including its extent of poverty, overcrowding and population growth.
The new little-publicized AFFH ruling extended overreach of federal government control of independent local governance on a truly draconian scale. It required that suburbs, townships and small cities that accept HUD block grants could be forced to change their zoning codes and build high-density low-income housing for “underrepresented” groups, or even to relocate planned schools, transportation hubs and business districts to answer the federal bureaucracy’s ideas of the correct ethnic, racial and economic “balance.”
As explicitly stated, “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, to adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”
AFFH gave HUD a weapon of power to force any community that received federal funds to meet racial distribution quotas. To accomplish this, HUD applied the notion of “disparate impact,” which unilaterally deemed housing patterns to be discriminatory if minority representation was not evenly spread across the jurisdiction. Communities with high concentrations of minorities were automatically labeled “segregated” according to paint-by-number land use assessments.
Yet federal law prohibits HUD from conditioning funds on “the adoption, continuation, or discontinuation by a jurisdiction of any public policy, regulation, or law.”
AFFH also contravened a Supreme Court ruling earlier that year that affirmed the Fair Housing Act “is not an instrument to force housing authorities to reorder priorities” or to “decree a particular vision of urban development.”
Nevertheless, prohibited or not, New York State’s Westchester County experienced a costly illustrative saga following a lawsuit alleging that its suburban village of Tuckahoe was out of compliance with HUD’s social engineering “vision.”
Faced with crippling economic penalties, Westchester agreed in a 2009 consent decree with the Obama administration to spend $56 million on 750 subsidized housing units over the next seven years in 31 mostly white enclaves. Westchester exceeded that goal by 40 units.
HUD then moved the goal post to require Westchester County to build 10,000 more subsidized low-income taxpayer-funded units.
But that wasn’t enough. Under the new AFFH rules, any jurisdiction receiving HUD money was required to analyze and report its overall housing occupancy by race, disability, familial status, economic status, English proficiency and other categories.
Westchester’s basic zoning policies were determined to be racially “exclusionary” based upon development restrictions such as building height and area density. Single-family homes on quarter-acre lots were deemed potentially “discriminatory” – supposedly because minority members might not be able to afford them.
HUD may have been referring here to exclusionary Westchester County homes like the $1.7 million 11-room colonial in Chappaqua purchased in 1999 by Bill and Hillary Clinton.
In any case, the Clintons’ single-family residence should be considered only modestly exclusionary compared with the $12 million 7,000-square-foot 29-acre estate since purchased by Barack and Michelle Obama.
But then, who can really blame them … or Joe Biden, Bernie Sanders, Nancy Pelosi and other strong AFFH supporters who own multiple large, expensively exclusionary single-family properties?
At least that’s what the new HUD Secretary, Ben Carson, determined in January 2017 when he suspended action on AFFH indefinitely soon after President Trump assumed office. Dr. Carson then stating that the action focused on the idea of preserving housing choice.
Following Trump’s permanent dismantling of AFFH last month, Carson tweeted, “The AFFH rule was a ruse for social engineering under the ruse of desegregation, essentially turning @HUDgov into a national zoning board.”
Ironically — if not surprisingly — House Speaker and multi-house upper-crust owner Pelosi wasted no time decrying the reversal of Obama’s lawless rule as “a betrayal of our nation’s founding values of equality and opportunity for all” and “shameful abdication of our government’s responsibility to end discriminatory housing practices.”
As The Wall Street Journal editorial board urges, a better way to increase income mobility for minorities is to expand school choice so that a child’s success in life isn’t determined by the ZIP code where he/she grows up. Doing so, they argue, would also reduce the substantial housing price premium in better school districts.
But “Alas,” they write, “Democrats would rather reorganize neighborhoods than reform schools.”
President Trump’s push for Congress to pass a nondiscriminatory “Educations Freedom Scholarships and Opportunity Act” school choice voucher program reforms would do exactly that.