Fair Housing or Federal Agency Running Riot?
In case you missed it, Ben Carson has been labeled as being “at odds with fair housing.” During his senate confirmation hearing last week, Carson was required to defend his position on Affirmatively Furthering Fair Housing (AFFH), the Department of Housing and Urban Development’s (HUD’s) controversial 100‐page‐plus contemporary interpretation of the Fair Housing Act.
It may sound appalling that anyone anywhere would be against fair housing. Still, there are sane reasons to object to the rule. Carson suggested a couple of possibilities; for example, he worries about Washington, D.C. administrators demanding that local communities “go looking for a [racial] problem” when no evidence of such a problem exists a priori.
If you don’t like intemperate federal agencies running riot, there is another process‐related objection that Carson missed: AFFH may insert the federal agency into policy areas not even remotely authorized by the legislation it purportedly interprets.
The table below provides a comparison of the original Fair Housing Act language and AFFH language, so that you can decide for yourself:
| Fair Housing Act of 1968 (original legislation) | Affirmatively Furthering Fair Housing of 2015 (HUD’s re‐interpretation) |
| 1) Prohibits landlords from discriminating against minority tenants. | 1) Stated objective is to “replace segregated living patterns with truly integrated and balanced living patterns [within cities].” |
| 2) Uses the word “segregated” or “segregation” a total of 0 times. | 2) Uses the word “segregated” or “segregation” a total of 126 times and urges“overcoming historic [geospatial] patterns of segregation.” |
| 3) The original FHA law uses the word “zoning” just 1 time, wherein it instructs the HUD Secretary to refer discriminatory local zoning or land use laws to the Attorney General so that he/she can file a lawsuit. | 3) The AFFH mentions “zoning” 53 times, wherein it suggests that communities change their zoning to improve racial integration (not a bad suggestion, but a departure from the original law). |
| 4) The original FHA law uses the word “affirmatively” 2 times. Each time, it asks executive departments and agencies to administer their programs and activities in a way that affirmatively furthers “the purposes of this subchapter,” where the subchapter focuses on prohibiting a discriminatory relationship between landlord/seller and tenant/buyer. | 4) The AFFH rule uses the word “affirmatively” 423 times, wherein it redefines the term to mean “replacing segregated living patterns with truly integrated and balanced living patterns” and “transforming racially and ethnically concentrated areas.” |
| 5) The original FHA law uses the word “concentration,” referring to the concentration of poverty or concentration of minorities in cities, 0 times. | 5) The AFFH rule uses the word “concentration” 56 times and urges “reducing racial or ethnic concentrations of poverty.” |
HUD believes the rule merely implements the Fair Housing Act’s intent. You can form your own view.
