On June 5, 2018, four amicus briefs in support of the plaintiffs in National Fair Housing Alliance (NFHA) et al v. Carson were filed in D.C. District Court. NFHA et al v. Carson is a lawsuit challenging the Trump Administration’s suspension of the Affirmatively Furthering Fair Housing (AFFH) rule and obligation to submit an Assessment of Fair Housing (AFH), for over 900 jurisdictions (the vast majority of cities, counties and towns subject to the rule).
In response to the lawsuit challenging the suspension of the AFFH Rule, the Department of Housing and Urban Development (HUD) withdrew its original suspension notice and substituted a “withdrawal” of the AFFH Assessment Tool, which is the form that is required to comply with the AFFH Rule. Although this regulatory maneuver changed nothing on the ground, it forced the plaintiffs to amend their complaint, resubmit their preliminary injunction motion and accompanying affidavits, and respond in more detail to HUD’s attempts to justify its indefinite suspension of the rule. The amicus briefs urge the Court to issue a preliminary injunction against HUD to restore implementation of the AFFH Rule as well as advising it to grant summary judgement for the plaintiffs.
Co-counsel in the case are Relman Dane and Colfax, Lawyers’ Committee, PRRAC, NAACP LDF, ACLU, and Public Citizen, representing the National Fair Housing Alliance, Texas Housers, and Texas Appleseed. Together, they seek to restore the essence of this important civil rights rule and the affirmative commitment to advance equality, nondiscrimination, and desegregation throughout our country.
Summaries of Amicus Briefs
PolicyLink provides a clear and concise record of the development, piloting and implementation of the rule. Additionally, it includes information and insights related to the training and technical assistance support provided to communities as they conducted their Assessments of Fair Housing. T The legal arguments presented in the brief filed by PolicyLink center on HUD’s actions being arbitrary and capricious in that (1) there is no factual basis for the assertion that the initial rejection of 17 of the initial Assessments of Fair Housing means that there is a problem with the tool, rather the rate of initial noncompliance and HUD’s use of resources to guide grantees to bring their AFHs into compliance show that the AFFH Rule was acting exactly as it was designed to do; (2) there is no factual basis for the claim that HUD needs more time to develop a tool, in fact the evidence is clear that HUD already invested great time and effort in creating an effective tool that provides substantial assistance to communities to address their housing issues; and (3) HUD’s claims that it lacks the resources to implement the rule are unsupported by the facts, when in fact HUD has failed to deploy resources that are currently available to it.
Amicus brief summary of a coalition of over 50 housing justice groups (including the National Low Income Housing Coalition) led by the National Housing Law Project
The Housing Justice Groups’ amicus brief argues first, that federal housing policy has created enduring residential segregation that must be counteracted by government action. Second, they argue that returning to HUD’s previous tool, the Analysis of Impediments (AI), would allow HUD grantees to use HUD funds in a way that furthered segregation. The AI process required only a perfunctory review of fair housing issues and did not result in reduced segregation. Third, they argue that the reasons HUD gave for suspending the AFH tool are merely a disguise for the agency’s desire to avoid holding communities accountable for housing segregation. They point out that despite focusing on grantees’ need for more technical assistance and time to complete the AFH process, HUD has refused to review completed AFHs. Further, issues with the content of the AFHs, such as the failure to include appropriate fair housing goals, occurred in spite of and not because of the tool. Thus, replacing the structured AFH with the bare bones AI, that contains no meaningful structure, is a drastic step that will actually make it more difficult for local jurisdictions to do a fair housing analysis.
Amicus brief summary of the States of Maryland, California, Massachusetts, Virginia, and Washington; the District of Columbia; and the Cities of Austin, Texas; New Orleans, Louisiana; Oakland, California; Portland, Oregon; Seattle, Washington; and Toledo, Ohio
The state and local governments’ amicus brief argues that in suspending the tool without public comment, HUD ignored the input of the public and of local governments completing the process. Not only did this action deprive HUD of valuable input, but it violated the Administrative Procedure Act, which requires HUD to give notice and allow public comment when changing rules. Second, they argue the AFH tool has already produced positive results. They noted that they benefit from the use of HUD data and maps, and that the process had led to robust community involvement. Third, they argue that the low rate of initially accepted AFHs, which HUD sees as evidence that the AFH process is flawed, is actually evidence that the AFH process is working. HUD implemented the more robust AFH process because the previous process, the AI, was not producing meaningful results. Therefore, the fact that HUD is rejecting AFHs and collaboratively revising them with local communities means that the tool is providing a careful assessment of local fair housing issues.
New York emphasized how HUD’s claim that the Assessment Tool is “unworkable” fails to account for its jurisdictions’ success in fostering strong public participation and identifying metrics to assess progress. For example, New Rochelle held a series of stakeholder interviews, and developed clear metrics to achieve the goal of preserving and increasing housing affordability. New York maintains that HUD’s failure to address these successes makes its rule suspension arbitrary and capricious. New York also noted that HUD’s claim that the AFFH Rule was overly costly was unfounded, as costs would continue to decrease after the initial creation of guidance documents, online training sessions, flagship reports, and better trained staff. New York underscored the importance of a preliminary injunction by highlighting how the rule suspension is causing irreparable harm to the state. The suspension could delay housing reform by many years, thus permitting segregation and lack of opportunity to persist.