By Thomas Silverstein of Lawyers’ Committee
Upon taking the reins of leadership at the U.S. Department of Housing and Urban Development (HUD), many civil rights observers were concerned that Secretary Ben Carson would dismantle major initiatives that the prior administration had instituted to promote fair housing and access to opportunity. Yet, both in his confirmation hearing and in his conduct as Secretary up until the past two weeks, Secretary Carson seemed intent on assuaging the fears of the civil rights community. That drastically changed two weeks ago when he reversed years of HUD’s position against a flawed zoning analysis and greenlighted a plan for housing discrimination in Westchester County, New York.
On July 14, in a terse, one paragraph letter, Jay Golden, the Regional Director of HUD’s Office of Fair Housing and Equal Opportunity for New York and New Jersey, wrote to officials for Westchester County, New York, informing them that the Department had approved a zoning analysis that the County had submitted just one day earlier for its Analysis of Impediments to Fair Housing Choice. Westchester County was required to submit an Analysis of Impediments as a result of a consent decree that it entered with HUD in 2009 resolving allegations that the County had defrauded the federal government of tens of millions of dollars in federal funds by falsely certifying that it was affirmatively furthering fair housing when it was, in fact, doing no such thing. While the County’s previous zoning analyses were previously denied ten times by the Department, under Secretary Carson, it was finally approved with virtually no review.
In the Analyses of Impediments that Westchester County has submitted to HUD over the last eight years, the County repeatedly denied that any of the towns and villages within the County had exclusionary zoning that would have the effect of keeping out African American and Latino households. On ten occasions, like clockwork, HUD rejected the County’s Analyses of Impediments because of the false conclusion that there is no exclusionary zoning in Westchester County. In 2015, the Second Circuit Court of Appeals held “that HUD justifiably rejected the Countyʹs AI submissions because of its failure to adequately analyze the impediments that municipal zoning laws presented to fair housing choice.” Cty. Of Westchester v. U.S. Depʹt of Hous. & Urban Dev., 802 F.3d 413, 432-33 (2d Cir. 2015). More recently in another appeal decided by the Second Circuit on April 28, 2017, the Court of Appeals entered a Summary Order which stated “nor has the County submitted an acceptable AI since our decision in 2015” and concluded the Order saying “it is apparent that the County is engaging in total obstructionism”
Yet, HUD now inexplicably has approved the latest submission only one day after the County’s submission. Between the tenth and eleventh zoning analyses, there was no substantive change in the County’s position. The only thing that changed was the new political leadership of HUD, under Secretary Carson. The reversal lacks any principled basis and raises concerns that the federal government will abandon all pretense of enforcing the consent decree. During the Obama Administration and under the leadership of HUD Secretaries Shaun Donovan and Julian Castro, the federal government failed to enforce some of the most impactful provisions of the consent decree, which actually held the potential to change zoning in exclusionary municipalities, but there was little risk that the government would let Westchester County off the hook entirely.
To make matters worse, in an interview with the conservative Washington Examiner that was quoted in a July 20 article, Secretary Carson announced his intention to “reinterpret” the Affirmatively Furthering Fair Housing rule and claimed that the burden placed on local governments to comply was “craziness.” His choice of the word “reinterpret” was characteristically enigmatic and could mean any number of different things. While civil rights advocates brace for the follow-up to come, the context provided by the Secretary’s criticism of the alleged burden of complying with the rule is instructive.
Although this is a common rhetorical gambit for critics of the rule, the fact is that the rule did not create a planning obligation for municipalities where none previously existed. Instead, HUD has revised and modernized an existing planning process, the Analysis of Impediments, and provided copious guidance and data to municipalities to enable them to complete their plans. Thus, the net effect of the rule is to significantly decrease the burden placed on municipalities by taking the guesswork out of compliance, reducing data collection costs, and reducing the risk of litigation by assuring greater quality control. If municipalities were spending less to complete their Analyses of Impediments under the 2015 rule’s predecessor, it was almost certainly because they were not actually complying with HUD regulations and guidance in doing so. At this point, any move to reduce the burden placed on municipalities by the rule would weaken the planning process as a platform for increasing access to opportunity.
As troubling as HUD’s approval of Westchester County’s zoning analysis and plans to “reinterpret” the Affirmatively Furthering Fair Housing rule are, advocates can still push back and ensure that Secretary Carson hears our voices when we say that our commitment to access to opportunity is non-negotiable. If we are zealous in monitoring the implementation of the rule and watching out for any attempts to repeal or revise the rule or the forms or guidance that support the rule, we have the power to hold Secretary Carson accountable. It has never been more important to be vigilant.