By: Brittany Wilson
Member, American Journal of Trial Advocacy
Today, many Americans would be surprised to come across a “whites only” real estate listing while searching for a new home or apartment, but these same individuals are likely well aware of the persistent discrimination and segregation among certain race and income groups in communities across America. This issue generated much attention in 2018 after Ben Carson, the Secretary of the Department of Housing and Urban Development (HUD), suspended a set of fair-housing regulations previously adopted during the Obama administration. These Obama-era regulations were enacted to comply with the Fair Housing Act of 1968 which, among other things, sought to remedy discrimination and segregation in housing. Subsequent to this suspension, individuals began to argue that the Trump administration has not only perpetuated discrimination but has sought to dismantle the tools necessary to remedy such discrimination.
The first Obama-era regulation, known as the Affirmatively Further Fair Housing (AFFH) Rule, required localities receiving HUD funding for any housing or urban development purpose to analyze housing patterns, identify disparities, and develop detailed plans to address problems. To simplify this process, HUD provided localities with data regarding racial demographics, poverty levels, access to public transportation, and quality of education. After localities reviewed the data and submitted their plans, HUD was required to review the plans, reject those that were inadequate, and work with localities to improve the proposed plans.
In 2018, Ben Carson stated that localities were no longer bound by these regulations because the tools used to develop the anti-discrimination plans were “confusing, difficult to use, and frequently produced unacceptable assessments.” Consequently, Carson stated that HUD would instead launch a series of “national listening sessions” whereby members of the community would submit their opinions on how to facilitate fair housing in their communities. Activist groups responded by arguing that it was illegal for HUD to suspend rules without going through a new round of notice and comment rule making. Furthermore, these groups alleged that such minimal requirements violated the Fair Housing Act because they were ineffective in furthering the Act’s goal, which was to remedy unfair discrimination and segregation.
In addition to the promulgation of the AFFH, the Obama administration helped to reaffirm the legal significance of “disparate impact” claims. Disparate impact states that a system or practice can be discriminatory if it is found to disproportionately affect minorities, even when the discrimination wasn’t explicitly intended. While the term isn’t specifically used in the Fair Housing Act, the concept has been reaffirmed by the courts for more than 40 years and more recently, in three landmark fair housing cases, all brought during the Obama administration. In 2011, Countrywide, a mortgage lender, was sued for engaging in predatory lending practices against African American and Latino borrowers. The next year, Wells Fargo settled a case with the Department of Justice after charging higher interest rates to people of color. Most recently, in 2015, the Supreme Court directly reaffirmed the validity of disparate impact claims by holding that racial discrimination in fair housing cases should not be limited by questions of intent.
Both the undermining of the AFFH and revision of the disparate impact rule illustrate the Trump administration’s attempts to roll back fair housing regulations. Fair-housing activist are concerned that these attempts will eliminate the tools necessary to remedy discrimination and, therefore, continue to perpetuate ongoing injustice in fair and equal housing. Because this injustice has wide-spread effects on an individual’s quality of schooling, exposure to crime, access and quality to public services, and employment, these concerns are well-founded. Currently, it is estimated that over four million people are affected by housing discrimination every year. This number is alarming considering it has been fifty years since the passage of the Fair Housing Act. Therefore, without more concrete and easy-to-follow regulations, wide-spread discrimination and segregation will continue to exist in communities across America.
 Sean Anderson, A Fight Over Fair Housing Regulations, NPR (March 25, 2019) (downloaded at https://www.npr.org/podcasts/381443539/legal-issues-in-the-news).
 Affirmatively Furthering Fair Housing, PolicyLink, https://www.policylink.org/our-work/community/housing/affh (last updated March 2018).
 Anderson, supra note 1.
 Ben Lane, HUD Kills Key Tool Used to Enforce Obama Fair Housing Rule, Housingwire (May 18, 2018) https://www.housingwire.com/articles/43415-hud-kills-key-tool-used-to-enforce-obama-fair-housing-rule.
 Anderson, supra note 1.
 Jeff Andrews, Disparate Impact, the Latest Civil Rights Tool in Ben Carson’s Crosshairs, Explained, Curbed (Jan. 14, 2019, 1:25 PM), https://www.curbed.com/2019/1/14/18177201/disparate-impact-discrimination-housing.
 P.R. Lockhart, The Trump Administration is Considering a Major Rollback of Civil Rights Regulation, Vox (Jan. 7, 2019, 2:00 PM), https://www.vox.com/policy-and-politics/2019/1/7/18167275/disparate-impact-civil-rights-trump-administration.
 Andrews, supra note 10.
 Bill Chappell, In Fair Housing Act Case, Supreme Court Backs ‘Disparate Impact’ Claims, NPR (June 25, 2015, 12:26 PM), https://www.npr.org/sections/thetwo-way/2015/06/25/417433460/in-fair-housing-act-case-supreme-court-backs-disparate-impact-claims.
 Jorge Andres Soto & Morgan Williams, The Nation’s Challenge and HUD’s Charge: Creating Communities of Opportunities for All, 26 J. Affordable Housing & Community Dev. L. 305, 308 (2017).
 Kelsey E. Thomas, This is What Housing Discrimination in the U.S. Looks Like, Next City (Apr. 20, 2017), https://nextcity.org/daily/entry/housing-discrimination-us-report.