2021 Fair Housing: Restoring HUD Rules and Revenues

April 15, 2021 -- Although the month of April is annually observed as Fair Housing Month, the reality for Black America and other people of color is that housing has not significantly changed since the 1968 federal enactment of the Fair Housing Act. Its enactment came seven days after the assassination of Dr. Martin Luther King, Jr. who had strongly advocated fair and open housing.

But 53 years after an historic enactment, race and place remain the determining factors of who is allowed the opportunity to build wealth, as well as to share wealth’s financial advantages across family generations.

What makes this year’s observance more hopeful are renewed efforts by both President Biden and Congress to correct decades’ long denials of full access to the American Dream.

For the first time in more than four years, the nation’s President committed his Administration to the active pursuit of fair housing. Beginning with a memorandum coinciding with his inauguration on January 26th, President Biden directed the Secretary of Housing and Urban Development (HUD) to “as soon as practicable, take all steps necessary to examine the effects of” the Trump Administration’s 2020 repeal of two key housing rules issued by the Obama Administration: the 2013 Disparate Impact Standard and the 2015 Affirmatively Furthering Fair Housing.

On inauguration day, the U.S. Senate had not yet taken action on many cabinet-level agencies.

“This is not only a mandate to refrain from discrimination,” stated President Biden on January 26th, “but a mandate to take actions that undo historic patterns of segregation and other types of discrimination and that afford access to long-denied opportunities.”

The “disparate impact” standard for proving discrimination helps to ensure that lenders, insurers, governments and others covered by the 1968 Fair Housing Act to analyze their policies and eliminate those that disproportionately hurt certain groups without justification. Similarly, Affirmatively Furthering Fair Housing (AFFH) legally requires that federal agencies as well as recipients of federal funds to actively address and work to eliminate housing discrimination and segregation.

“Systemic discrimination continues to limit housing opportunity for Black and Brown communities and stunts our country’s economic growth,” said Nikitra Bailey, Executive Vice President with the Center for Responsible Lending. “Reinstating the original Disparate Impact and AFFH rules will move us closer to achieving a more just society where everyone has access to opportunity. Moreover, given the large amounts of federal funding subject to the AFFH requirement being distributed, there is an urgency to restore the rule’s obligations on jurisdictions.”

Only a month following her March 13th U.S. Senate confirmation, HUD Secretary Marcia Fudge acted on the President’s direction and announced steps to restore both fair housing rules gutted by the Trump Administration. HUD has submitted the rules to the Office of Management for regulatory review. Once OMB completes its review, the revised rules will be published in the Federal Register.

As much as fair housing regulations are needed, adequate funding to support HUD programs determine how many low-and-moderate income people can actually receive housing assistance.

On April 9th and exercising presidential authority for discretionary spending, $68.7 billion was awarded to HUD for fiscal year (FY) 2022. This nearly $9 billion increase above 2021 funding levels will boost revenues for programs delivering direct services. All of these monies are bonus funds that will be augmented by other funding made available through the annual budgetary process.

“President Biden’s FY22 discretionary funding request turns the page on years of inadequate and harmful spending requests and instead empowers HUD to meet the housing needs of families and communities across the country. I am particularly pleased that the request proposes more than $30 billion to expand housing vouchers to an additional 200,000 low-income families,” noted HUD Secretary Marcia Fudge.

The bulk of these funds are dedicated to expanding the Community Development Block Grant (CDBG) program by $3.8 billion. CDBG is one of the department’s most valued programs and has benefitted over the years from bipartisan support due to its focus on local priorities to remedy housing ills. Similarly, $3.5 billion in discretionary revenues will be dedicated to resolving homelessness.

After more than a year of challenges wrought by COVID-19, the risk of losing housing looms even larger today. Preserving affordable housing and homelessness prevention are key pulse points for many local communities.

Other HUD programs that will expand due to the discretionary funding include: Housing Choice Vouchers, also known as Section 8 housing that augments monthly rental cost in the private housing market and serves low-to-moderate income families; and the HOME Investment Partnerships Program that serves elderly and persons with disabilities with permanently affordable housing.

Fair housing is also emerging as a priority item on Capitol Hill lawmakers.

On April 13th, the U.S. Senate Banking and Urban Affairs Committee convened a hearing entitled, “Separate and Unequal: The Legacy of Racial Discrimination in Housing”. Ohio Senator Sherrod Brown’s opening statement as committee chair set the tone for the forum.

“As my friend Joyce Beatty said recently, we cannot change our history,” noted Sen. Brown. “But we can learn from it, and we can build a far better future – one that brings us closer to making our founding ideals real for everyone. Fair housing took longer to pass through Congress than voting rights, desegregation of public spaces, and even equal opportunities for employment.”

Expert testimony provided startling data and calls for changes that will make real the promises of fair housing.

Testifying on behalf of the NAACP Legal Defense and Educational Fund, Inc., Richard Rothstein, its Senior Fellow Emeritus, candidly assessed America’s lack of fair housing and the consequences of it. Since its founding in 1940 by the late Thurgood Marshall, LDF seeks structural changes to expand democracy, eliminate disparities, achieve racial justice through litigation, advocacy and public education. In housing, LDF works to combat racial segregation and promote racial integration and opportunity.

As an example of federal discriminatory practices, Rothstein cited the example of Levittown, a mass-produced post World War II suburb of 17,000 homes that sold for $7,990 with a 0% down payment for veterans. Despite the guarantees of the Servicemen’s Readjustment Act of 1944, more commonly known as the G.I. bill, Black veterans were denied loans and suburbs remained all-white.

This discrimination was long sustained, even though the G.I. bill guaranteed a range of benefits to veterans that spanned education, unemployment, and loans to purchase homes, farms or businesses.

“Despite the homeownership boom in the 1950s and 1960s, which sent homeownership rates in the U.S. from 30 to 60%, 98% of the loans approved by the federal government between 1934 and 1968 went to white applicants,” testified Rothstein.

“By guaranteeing affordable mortgages for white families and excluding Black families or limiting Black families to purchase in less economically advantageous neighborhoods, the government created, encouraged, and reinforced intense residential racial segregation throughout the nation,” continued Rothstein. “White flight,” or the creation of white suburbs, was also undergirded by massive federal investments in the construction of the interstate highway system. The federal government often took possession of homes and land in Black communities by claiming eminent domain in order to construct highways as physical barriers between white neighborhoods and areas with a large presence of African Americans or communities of color.”

Also testifying at the Senate hearing was Lisa Rice, President and CEO of the National Fair Housing Alliance, the country’s only national non-profit civil rights agency dedicated to eliminating all forms of housing discrimination and ensuring equitable housing opportunities for all.

“In this nation where you live matters,” said Rice. “Your address determines almost everything about you - your chances of graduating from high school or college, getting arrested, net worth, income, ability to own a home, credit score and how long you will live. Your zip code is a better determinant of your health than your genetic code. Segregation creates a built inequitable environment where resources and opportunities get concentrated in predominately white communities and are sparsely located in communities of color… It is the bedrock of inequality in America because neighborhoods of color are more likely to have poorly resourced schools and fewer amenities like healthcare facilities, grocery stores, green spaces, and bank branches. But communities of color are more likely to have hazardous and toxic waste plants and more polluted land, air, and water.”

“When you look at our residential and lending patterns, we are a century behind where we need to be…The bias in our markets is not a bug but a feature. They were built that way and intended to operate in a discriminatory fashion. They will continue to do so until we make systemic and cultural changes,” concluded Rice.

In other words, race all too often determines ‘place’. And place remains a key determinant in life. Real fair housing can and must be the difference and the change.

Charlene Crowell is a senior fellow with the Center for Responsible Lending. She can be reached at Charlene.crowell@responsiblelending.org.