The Robert C. Weaver Federal Building, headquarters of the U.S. Department of Housing and Urban Development, Washington, D.C. – courtesy of Wikimedia Commons
Critics deride it as government-backed social engineering, a policy that effectively spells the end of local control over zoning laws.
Supporters praise it as a means of racially and economically diversifying America’s suburbs and of ensuring, in the words of President Barack Obama, that “a person’s ZIP code doesn’t decide their destiny.”
But, love it or hate it, there is no doubt that the legacy of the Obama administration’s new housing policy will be felt long after the president moves out of 1600 Pennsylvania Ave.
Earlier this month, the Department of Housing and Urban Development issued final regulations outlining the policies that local governments must follow in order to comply with the Fair Housing Act of 1968, which prohibits housing discrimination.
The legacy of the Obama administration’s new housing policy will be felt long after the president moves out of 1600 Pennsylvania Ave.
Although the Fair Housing Act has long been understood to prohibit intentional discrimination, such as the refusal of a bank to offer a customer a mortgage because he or she is black, the new regulations go much further — seeking to alter housing patterns that are the result of numerous complex factors other than intentional racism.
In almost 400-pages of federal regulations, the “Affirmatively Furthering Fair Housing Policy,” as it is known, requires HUD program participants to take measures to ensure that the racial diversity of each zip code reflects the population of the area at large.
Specifically, the regulations require municipal governments to “perform an assessment of land use decisions and zoning” and take affirmative measures to remedy any racial imbalances.
In his comments accompanying the release of the regulations, former San Antonio, Texas, mayor and current HUD Secretary Julián Castro also latched on to the ZIP code theme.
“As a former mayor, I know firsthand that strong communities are vital to the well-being and prosperity of families,” Castro said in a statement. “Unfortunately, too many Americans find their dreams limited by where they come from, and a ZIP code should never determine a child’s future.”
Secretary Castro introducing President Obama at a recovering housing sector event in Phoenix, Arizona, January, 2015 – courtesy of Gage Skidmore, Wikimedia Commons
United States Supreme Court weighs in
HUD issued the final regulations just days after the United States Supreme Court handed down its 5-4 decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project. In Inclusive Communities, the court held that it is not necessary for plaintiffs to prove intent to discriminate in order to prove a case of housing discrimination; rather, plaintiffs may prevail simply by demonstrating that a housing policy has a “disparate impact” on minorities.
Writing for the majority, Justice Anthony Kennedy declared that “disparate impact claims” are consistent with the “central purpose” of the statute, which can fairly be read to prohibit “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”
Supreme Court photo courtesy of Ocean Photography
But Justice Samuel Alito, writing in dissent, argued that the Fair Housing Act prohibits only intentional discrimination, not raw statistical disparities.
“It is hard to imagine,” wrote Alito, “how Congress could have more clearly stated that the [Act] prohibits only intentional discrimination than by forbidding acts done ‘because of race, color, religion, sex, familial status or national origin.’”
“Congress has done nothing since 1968 to change the meaning of the [Act’s] prohibitions at issue in this case.”
New HUD regulations prohibit policies with a “disparate impact” on minority groups, meaning that housing policies can be called into question simply because a neighborhood is predominantly black or predominantly white.
Under the Court’s interpretation of the law and the new Obama administration regulations, HUD’s power becomes almost limitless. It can use the the full power of the federal government and the threat of legal action to force communities to redistribute housing in accordance with larger racial and economic demographics.
A long-range plan to remake society
Housing activists recognize that the sweeping societal changes envisioned by the new policy will not “happen overnight.”
“We’re talking decades,” said Margery Austin Turner, a representative of the Urban Institute, in a June 1 discussion on the policy hosted by the Brookings Institution, a nonprofit public policy organization in Washington, DC.
“But [over the course of] decades, I think that jurisdictions all over the country would have some real accountability . . .some real incentives to start addressing the barriers that have excluded people from opportunity-rich places and denied opportunities to the places where poor people and people of color live.”
The panel, which also included Washington Post reporter Emily Badger, was moderated by Richard V. Reeves, senior fellow for Economic Studies and co-director of Brookings’ Center on Children and Families.
During the exchange, one of Reeves’ comments stood out.
“Perhaps it’s important to keep it sounding obscure in order to get it through,” Reeves said, as panelists and members of the audience giggled. “Sometimes obscurity is the best political strategy, particularly in this area.”
The benefits of keeping government legislation and regulation so “obscure” as to confuse (or simply bore to tears) the voting public is not a new political tactic. Last fall, critics of the Affordable Care Act were outraged to discover that White House consultant and MIT economics professor Jonathan Gruber had described the legislation’s length and complication as a “huge political advantage” during a 2013 panel discussion of Obamacare hosted by the University of Pennsylvania.
“Call it the stupidity of the American voter or whatever, but basically that was really, really, critical to get anything to pass,” Gruber said.
A Gruber Moment? A proponent of the HUD disparate impact regulation said that it’s best to “keep [the policy] sounding obscure in order to get it through.”
When asked last week about his “Gruberesque” comment on the housing regulations, Reeves defended it via email, saying it was “made with a degree of levity” and was “off the cuff.”
“As a general principle, I am a strong supporter of transparency in policy, for democratic as well as more utilitarian reasons,” Reeves wrote.
How will local jurisdictions comply with the Obama administration policy?
New York’s Westchester County, home to Democratic presidential candidate Hillary Clinton, is America’s “canary in a coal mine” when it comes to HUD’s vision for the suburbs, according to County Executive Rob Astorino.
When faced with a federal lawsuit in 2009, Westchester County agreed to build 750 affordable housing units in 31 upper middle-class suburban communities.
According to Astorino (who was not in office at the time), the county had financed 399 units, of which 150 were occupied, by 2013. Nevertheless, HUD insisted that the agency had not done enough to claim sufficient control of local zoning boards.
By the end of 2014, Westchester County had financed 454 units (surpassing a 450-unit benchmark), and certified 406 units, 56 more than the settlement established with HUD required.
But in a phone call Monday, Astorino said that HUD officials had rejected all eight of the county’s benchmark reports and are still withholding approximately $20 million in federal funds that the county had previously secured.
“HUD keeps moving the goalposts,” Astorino said. “They won’t stop until they obtain federal control of the suburbs. The feds are equating local zoning [and the free market] with segregation.”
Due to the intrusiveness of the federal government, Westchester County has decided that it no longer will accept HUD money.
Westchester County Executive Rob Astorino – courtesy of Michael Gareth Johnson, Wikimedia Commons
“The deck is stacked against every community, and the only way to be free is to not take their money,” Astorino said. “There’s no such thing as a free lunch, especially when it comes to receiving money from the federal government. To them, money is no object, and they have an endless supply of lawyers and cash [to force localities to comply with their will].”
Astorino added that activists and government officials are quick to label as racist anyone who speaks out against HUD and its complicated policy.
“They throw the race card around to silence dissent,” he said. “But this country is about due process and the right to assemble.”
Live free (from HUD?) or die
Here in New England, one New Hampshire town has likewise decided to say “no” to HUD money that comes with such tight federal strings.
Goffstown, New Hampshire, a suburb of Manchester, decided in the fall of 2013 to turn down a HUD-backed housing proposal after residents were shown a video of Astorino describing what has transpired in Westchester County.
On Tuesday, New Hampshire state Rep. John Burt, R-Goffstown, said the town’s planning board killed the proposal before it had the opportunity to reach the floor at Town Meeting.
“It did open a tremendous amount of eyes in New Hampshire,” Burt said about Astorino’s video, adding that he played the clip for about 150 residents who packed an elementary school gym for a meeting he organized in the densely populated Goffstown neighborhood of Pinardville.
The September 2013 Goffstown, New Hampshire, Town Meeting is viewable on YouTube.
Pinardville’s Bartlett Elementary School, site of Burt’s meeting – courtesy of John Phelan, Wikimedia Commons
The Pinardville neighborhood was the site of the housing proposal, which received $50,000 in HUD funding in its initial design phase. Planning Board meeting minutes show the proposal was dismissed on a unanimous vote. Goffstown sent the $50,000 back to HUD.
“I was only a tiny part of it,” Burt said about the movement to stop the development from being built. “Now other towns in New Hampshire like Rindge and Bedford are saying ‘no’ to HUD money, but these decisions haven’t attracted much media attention.”
Westchester’s Astorino echoed Burt’s concern over the lack of national media attention on the Obama Adminstration policy.
A nationwide 2013 Rasmussen poll asked voters whether the federal government should play a role in deciding where people can live and whether it was the government’s job to diversify America.
Seventy-four percent of voters disagree with the disparate impact approach in the HUD mandate. Only 10 percent think the federal government “should do more” to force neighborhoods to diversify.
Seventy-four percent of voters surveyed indicated that they disagreed with the approach taken by the “Affirmatively Furthering Fair Housing” mandate. Only 10 percent of respondents agreed that the federal government “should do more to make sure most, if not all, neighborhoods in the United States are more racially and ethnically diverse.”
“The [Supreme Court] decision [on this] came down right smack in between gay marriage and Obamacare, yet it could wind up affecting [more] Americans [than either or both of those cases],” Astorino said. “Westchester was on the tracks when the train came through. We’re a living and breathing example. No matter where you live, this is coming down the pike.”
Astorino issued a warning for people living in Boston’s more exclusive suburbs.
“If [Bostonians] like their neighborhoods the way they are now, they might want to consider changing their voting patterns,” he said.
The Robert C. Weaver Federal Building, headquarters of the U.S. Department of Housing and Urban Development, Washington, D.C. – courtesy of Wikimedia Commons 
