Judge Says HUD Free to Revise Housing Desegregation Rule

WASHINGTON (CN) – Civil rights groups are expressing disappointment over the federal court ruling that the U.S. Department of Housing and Urban Development does not have to reinstate a rule designed to undo racial segregation.

In May, the department announced it was withdrawing parts of the longstanding Affirmatively Furthering Fair Housing rule, including an assessment tool used to identify housing discrimination.

The Obama-era rule was intended to give teeth to a federal Civil Rights-era requirement that local towns and cities actively address historic segregation in housing within their borders and to identify and remedy potential barriers to fair housing for all prospective home buyers.

But the department said communities had struggled to complete the stringent Obama administration requirements, and that a third of the remediation plans submitted for HUD’s approval in 2017 were deemed insufficient and sent back.

The department said it would stop reviewing the plans and give jurisdictions until at least 2020 to come into compliance. In the meantime, federal regulators said, they would go back to its earlier method of evaluating discrimination in housing, known as the “analysis of impediments process.”

In a statement released at the time, the department said “what we heard convinced us that the Assessment of Fair Housing tool for local governments wasn’t working well.”

“More than a third of our early submitters failed to produce an acceptable assessment — not for lack of trying but because the tool designed to help them to succeed wasn’t helpful,” the statement said.

Shortly after the policy change was announced, a coalition of civil rights organizations including National Fair Housing Alliance, Texas Appleseed and Texas Low Income Housing Information Service sued department and HUD Secretary Ben Carson to force them to reinstate the rule.

In their lawsuit, the plaintiffs argued HUD didn’t follow its procedures necessary to suspend such a rule, and that the delay violates the Fair Housing Act.

However on Friday, Chief U.S. District Judge Beryl Howell rejected the plaintiffs request for a preliminary injunction, holding that they hadn’t shown they suffered any actual harm from the delay of the rule.

She note that “portions of the rule are still in effect, such as the new definitions of furthering fair housing and community engagement requirements,” and held that just because other portions “are presently dormant [that] does not translate to the dismantling and suspension of the AFFH Rule in a way that affects the plaintiffs’ mission-driven activities.”

“The extent to which the challenged HUD notices directly conflict or perceptibly impede the plaintiffs’ mission-oriented activities seems difficult to measure, or, in other words, are imperceptible,” Howell wrote.

In the wake of the ruling, Morgan Williams, general counsel of the National Fair Housing Alliance, told Courthouse News that the plaintiffs “are deeply disappointed that the court did not recognize the importance of immediately and fully reinstating the mechanisms needed to implement the AFFH rule.”

“The tool is a framework with which to consider various issues within a jurisdiction relating to discrimination and was vetted through a process designed to assist in conducting meaningful assessments and identifying solutions,” Williams said.

While he acknowledged that the department says it will resume using the analysis of impediments process, Williams maintained the process is deficient because it lacks three important elements — public participation, a framework that supports meaningful assessment and accountability.

According to the groups’ complaint local governments are still required to submit assessments and collect data, but Williams said there is little to ensure entities are in compliance without the mechanisms that were suspended by HUD.

Representatives of the department did not immediately respond to a request for comment on the ruling.

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