Talking Affordable Housing Without Talking Fair Housing is Bad Faith

Emily Badger recently writes in the New York Times of a renewed rhetorical commitment by HUD Secretary Ben Carson to address the crisis in affordable housing. However, she’s rightly skeptical of the practicability of Carson’s market-based solution to enlarge the supply of housing:

He is probably right. But the kind of housing he describes is impractical, illegal or too costly to build in much of the United States today, in suburbs and big cities alike. Blocking it are: zoning rules that allow only single-family homes; laws that dictate the size of yards; elaborate permits that drive up development costs; and rules that grant neighbors a veto over what is built.

In a recent interview, Carson suggested that such exclusionary zoning laws could disqualify local communities from receiving federal housing assistance.

The problem with Carson’s remarks is that his own department’s actions show them to be hot air; Carson has overseen HUD’s withdrawal from enforcing fair housing laws. Kriston Capps writes in Citylab that civil rights groups have been hammering Carson and HUD for decisions made this summer to open reconsideration of two agency rules, disparate impact and “affirmatively furthering,” that would radically diminish HUD’s scope of action. The first rule change targets policy that establishes a disparate impact on a protected group, rather than proof of discriminatory intent, as the standard to declare a violation of fair housing laws.

In 2015, the U.S. Supreme Court ruled that housing practices that disproportionately negatively affect minorities are prohibited, even when discrimination is not the explicit, stated goal of those practices. That’s the disparate impact standard, and it informs everything from renting to lending to building. A policy that concentrates low income housing vouchers in poor, minority neighborhoods, for example, is every bit as discriminatory as a whites-only listing—per a disparate impact reading of the Fair Housing Act.

Capps has covered this extensively in the last several years and I’ve made use of his reporting in several posts on the issue of fair housing. Essentially, if HUD guts disparate impact standards, it will be impossible for civil rights organizations to prevent discriminatory action by local housing authorities. This is crucial because, although the racialization of poverty in many metro areas is clear, localities can plausibly hide behind class-exclusionary zoning, which is perfectly legal, to limit and isolate mixed income housing development and subsidized housing.

Disparate impact standards were upheld as constitutional in Supreme Court decision upholding a Dallas-area fair housing advocacy group’s suit charging a suburban government acted illegally by concentrating subsidized housing in one part of town. This town, McKinney, was notorious for police violence against black teens in the breaking up of a pool party in a private development. I wrote about how the incident reflected spatial segregation as an embedded part of the community’s culture, an “emotional economy” of white privilege that local government had protected (Olga Khazan’s recent follow-up visit to McKinney shows that despite national media attention, underlying dynamics have changed little).

The “affirmatively furthering” rule dates back to HUD’s founding mandate, but, prior to the Obama Administration’s decision to enforce it, was largely observed in the breach. Stated simply, the principle requires jurisdictions receiving federal funding to take active measures to promote fair housing in their borders. Crucially, as Capps notes, this is not the same thing as incentivizing communities to build more housing: 

While the issues of affordable housing and fair housing are deeply interwoven, they aren’t the same thing. Even if HUD uses the power of the purse to incentivize density and growth, that’s not the same as desegregation. An alternative rule like the one Carson has in mind does nothing to ensure that Houston rebuilds more equitably with Hurricane Harvey recovery funds, for example. A zoning bonus won’t make Houston build low-income housing in neighborhoods of opportunity.

If a town or city can decline an incentive to build a large mixed-income housing development to appease its affluent NIMBY voters (usually a whiter, wealthier homeowning constituency) while suffering no handicap in its ability to receive federal funds (not just for housing), the local political choice is clear. As Badger lays out, this constituency, motivated both by property value and racial exclusion (I’d argue those are historically inseparable) has developed a hammerlock on local development politics that thwarts both inclusion and expansion.

Those messages, from officials in both parties, have been overpowered by the reality that the federal government can do little about fundamentally local laws, and by the bipartisan will of homeowners.

So, while Carson’s seeming sudden embrace of land use reform looks like a confusing coming out as YIMBY (Yes In My Back Yard), the reality is that a federal plan to encourage voluntary building by incentives is pretty much a plan to talk pretty while doing jack squat and evading responsibility for housing integration.

Again, someone tell David Brooks how localism works.

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