Coalition of states, cities join fight to force HUD to enforce Obama fair housing rule

Maryland, California, Massachusetts, Oakland, Seattle, others want AFFH rule back

The fair housing advocates that are suing the Department of Housing and Urban Development and HUD Secretary Ben Carson over the Trump administration moving to delay a controversial Obama-era fair housing rule already have support from the state of New York, and they now have a whole new group of allies in their corner.

Earlier this week, a coalition of six states and six cities told the judge overseeing the case that HUD’s actions are harmful and “unlawful” and want the Affirmatively Furthering Fair Housing rule reinstated.

Last year, HUD Secretary Ben Carson said that HUD was looking to “reinterpret” the Obama administration’s Affirmatively Furthering Fair Housing rule, which requires that cities and towns receiving federal funding to examine their local housing patterns for racial bias and to design a plan to address any measurable bias.

Then, in January, HUD announced that it was delaying the deadline for local governments to submit their fair housing evaluations by one year.

The move spurred civil rights groups, led by the National Fair Housing Alliance to sue HUD and Carson over the delay. The state of New York then announced that it planned to join the lawsuit against HUD, with New York Gov. Andrew Cuomo calling HUD’s move “unconscionable.”

And while that lawsuit was still in process, HUD killed the computer program at the center of the initial delay, effectively and indefinitely suspending the AFFH rule altogether.

Now, the fair housing groups’ lawsuit has more support.

This week, attorneys general from Maryland, California, Massachusetts, Virginia, Washington, and the District of Columbia, along with the cities of Austin, Texas, New Orleans, Oakland, California, Portland, Oregon, Seattle, and Toledo, Ohio filed an amicus brief in the case, arguing against HUD’s suspension of the AFFH rule.

In the brief, the cities and states argue that HUD’s moves on the AFFH rule undo “a carefully tailored regulatory scheme” that took years to develop.

“By taking this drastic step without first soliciting public comment, HUD ignored the views of the stakeholders,” the cities and states say in a statement.

“HUD’s May 23, 2018 order marks the second time since January that the agency has attempted to dismantle the Affirmatively Furthering Fair Housing Rule without first providing notice and soliciting public comment,” the coalition continues. “Acting without justification, without notice, and without public comment, HUD acted in an arbitrary and capricious manner.”

The group argues that HUD also did not follow the “bedrock principles” of administrative procedure by choosing to delay the rule without inviting public comment or providing advance notice.

“Worse, HUD’s primary justification for repealing its assessment tool—the supposedly high percentage of Assessments of Fair Housing that HUD failed to initially accept—is actually evidence that the Affirmatively Furthering Fair Housing program is functioning as HUD intended,” the group writes in its brief. “By primarily relying on an erroneous justification, HUD acted in a prototypically arbitrary and capricious manner by withdrawing the assessment instrument.”

In a statement, Maryland Attorney General Brian Frosh, who led the effort, said that the group views HUD’s actions as a violation of the law.

“HUD is stepping back from its duty of being a partner in our efforts to improve fair housing opportunities in our states and cities,” Frosh said. “Withdrawing a component of the Rule without allowing public comment, without justification, and without a plan for replacing it is not just wrong, it is unlawful.”

The groups’ brief can be read in full here.

In addition to the states and cities referenced above, New York officially moved this week to intervene in the fair housing groups’ lawsuit and compel HUD to reinstate the rule.

The move was announced Tuesday by the offices of New York Attorney General Barbara Underwood and Cuomo.

“HUD’s actions will delay efforts to address fair housing issues throughout the state, thus subjecting New York’s residents to continuing segregation and discrimination,” Underwood’s office said in a statement.

New York’s lawsuit argues that HUD’s actions violated the Administrative Procedure Act because of the following:

  • HUD suspended the requirements set forth in the AFFH Rule without opportunity for notice and comment
  • HUD ignored key evidence and failed to provide sufficient reasons for suspending the AFFH requirements
  • By suspending the requirements of the AFFH Rule without providing an effective replacement, HUD has abdicated its statutory responsibilities under the Fair Housing Act

To read New York’s lawsuit in full, click here.

3d rendering of a row of luxury townhouses along a street

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