Fair-housing advocates have sued the Department of Housing and Urban Development and HUD Secretary Ben Carson for suspending a rule that required cities to prove their housing policies don’t promote segregation.

The Affirmatively Furthering Fair Housing (AFFH) rule, issued in 2015 under President Obama, aimed to add teeth to the landmark Fair Housing Act of 1968, by requiring that municipalities receiving federal funds create plans to “assess local segregation patterns, diagnose the barriers to fair housing and develop a plan to correct them,” the Washington Post wrote.

Carson suspended the rule in January.

The lawsuit, from housing advocates the National Fair Housing Alliance, Texas Appleseed, and Texas Low Income Housing Information Service (Texas Housers), alleges that the suspension of the rule was unlawful because it was done without advanced notice or opportunity for public comment. The complaint also accuses HUD of making the decision based on “sparse reasoning… [that] was arbitrary and capricious.”

“All HUD pointed to was that some of the first jurisdictions to go through the process submitted to HUD inadequate plans, and then it said it had to work with those jurisdictions to correct those issues, and that resulted in work for the jurisdictions and HUD,” said Sasha Samberg-Champion, counsel with Relman, Dane & Colfax PLLC, on a call with reporters. “But that’s not surprising.” The process is supposed to involve work, said Samberg-Champion.

The complaint also argues that HUD is violating its own duty under the Fair Housing Act to affirmatively further fair housing. Thomas Silverstein, co-counsel on the suit and part of the Lawyers’ Committee for Civil Rights Under Law, said that multiple court decisions shortly after the Fair Housing Act was passed held that affirmatively furthering fair housing “is not an optional feature in the FHA, it’s a clear duty placed on HUD and its grantees.”

When suspending the rule in January, the agency said that it believes that “program participants need additional time and technical assistance to adjust to the new…process.” In the meantime, HUD said, jurisdictions should go back to the old procedure, called “analysis of impediments,” in which communities were requested to prepare and update every 3 to 5 years an internal planning document that identifies potential roadblocks to fair housing. But the suit’s plaintiffs contend that a 2010 GAO study already concluded that the old analysis of impediments procedure was broken.

In the 2010 study, 473 communities receiving HUD grants were asked to share their AI reports. About a third (29 percent) were older than 2004; 11 percent were from the 1990s. These outdated reports “may not provide a reliable basis to identify and mitigate current impediments to fair housing,” the GAO said. A further 25 communities never even sent in their reports, and “the brevity and lack of content of others raised questions about whether they were AIs” at all, the agency wrote.

The AFFH rule would have required communities to submit plans to HUD that were more detailed and had to be approved by the agency as a condition of receiving federal funds.

Pointing to the example of Hidalgo County, Texas, as an area where the AFFH rule would have made an impact, Christina Rosales, communications director of Texas Housers said, that “Real people are left behind…without the clarity this rule provides.” One of the poorest parts of Texas, hundreds of thousands of people, mainly Spanish-speaking, live in colonias, settlements outside incorporated cities that lack basic infrastructure like water, sewage, electricity and paved roads. Hidalgo County, the plaintiffs say, made a substantial effort in addressing inequality in its first submission to HUD under the AFFH rule. It held multiple community forums to solicit comments, prepared materials in Spanish, and notified colonia residents. However, HUD rejected Hidalgo County’s first submission after Texas Appleseed and Texas Housers alerted HUD that the county had “failed to grapple with the publicly stated needs of colonias residents.” Before Hidalgo County could submit its revised plan, HUD announced it was suspending the rule. “Now we do not know whether Hidalgo County will submit a plan to HUD that truly complies with the Fair Housing Act,” Rosales says.

Rachel Kaufman is Next City's senior editor, responsible for our daily journalism. She was a longtime Next City freelance writer and editor before coming on staff full-time. She has covered transportation, sustainability, science and tech. Her writing has appeared in Inc., National Geographic News, Scientific American and other outlets.

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