Freedom

Opinion by Howard Husock

The goal of “fair housing” would seem to be quite straightforward. As spelled out in the Fair Housing Act of 1968 — and found in realtors’ offices across the country — it precludes “discrimination in the sale, rental and financing of dwellings … based on race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability.” In other words, those who can afford to rent or buy should not be precluded from doing so for reasons having nothing to do with the ability to pay.  

But for the Biden administration’s Department of Housing and Urban Development, fair housing is more — much more. In proposed regulations that would touch any jurisdiction that accepts any sort of HUD funding, fair housing must mean a plan to “promote equity in their communities, decrease segregation, and increase access to opportunity and community assets for people of color and other underserved communities.”  

Translated that means that the route to upward mobility for disadvantaged minorities lies through their relocation to more affluent communities, where they will no longer be “underserved.”     

he details as to how this should be done run more than 200 pages. Those required to comply will include more than 1,200 cities and counties receiving HUD funding. All will be required to develop “equity plans.”   

Such equity could mean anything from building low-income housing to redrawing school district lines for racial or socio-economic integration, all as assessed by the HUD bureaucracy.  

Both those concerned about the best routes to upward mobility for the poor and those concerned about administrative state overreach have reasons to be dubious. 

Opposition to the “affirmatively furthering fair housing” (AFFH) regulations will undoubtedly be labeled as racist defense of white suburbs. That is certainly how Donald Trump’s 2020 decision to suspend a previous Obama-era version of the rules was characterized. As CNN Business put it then, Trump was merely protecting neighborhoods with “higher-than-average shares of white households” from low-income housing. 

It has of late been a liberal mantra that children’s future should not be determined by the Zip Code where they grow up — and the HUD plan is meant to disperse low-income households where they are presumed to benefit from better schools and parks, which presumably city governments are inherently incapable of providing.   

The underlying social science rationale, cited by HUD, is that of Harvard economists Raj Chetty and Lawrence Katz, who examined data in a 1990s HUD program called Moving to Opportunity — in which a small number of low-income households were relocated to higher-income areas.   

As per HUD’s summary, “Children who move to low-poverty neighborhoods have increased academic achievement, greater long-term chances of success, and less intergenerational poverty.”  

Yet the actual Harvard study is far more nuanced, although it finds that “every extra year of childhood spent in a low-poverty environment appears to be beneficial,” it also notes that “for older children (those between ages 13-18), we find that moving to a lower-poverty neighborhood has a statistically insignificant or slightly negative effect.” It is hard to imagine a government effort that would limit participation for households based on the age of their children. 

More broadly, however, HUD fails to acknowledge that sustained upward mobility is based on the constructive life decisions made at the family level — including marriage and employment. These are the building blocks of the economic gains that enable moves to better neighborhoods. It is such moves that must be protected by enforcement of anti-discrimination law.  

Historically, it was the federal government, specifically the Federal Housing Administration, which engaged in racial discrimination by refusing to guarantee mortgages in racially changing neighborhoods.  

HUD would bring us to a new era of color consciousness in housing policy, in the name of “equity” — comparable life outcomes for those making distinct life choices. 

Don’t be surprised if those objecting include the suburban African-American middle class, which has worked hard and played by the rules. Their concern was captured in a recent New York Times article about “black flight” from racially integrated Shaker Heights, Ohio. It quoted a Black library staffer who said, “There’s a group of African Americans that have achieved and have it together. And then there’s the group that’s still caught in not having achieved. … And I come from the mind-set: Separate yourselves at all costs from the ones who might still be struggling.”   

Suburbs do need a great variety of non-single family housing types. But they should not be coerced by Washington to build new low-income housing projects. 

Then there’s what can be seen as the constitutional question raised by the AFFH regulations. HUD’s lengthy proposal is based on the thinnest of reeds in the 1968 Fair Housing Law, which, following its main anti-discrimination language, goes on direct other Federal agencies “to administer their programs … relating to housing and urban development … in a manner affirmatively to further” the policies of the act.   

It is into that small lane that HUD drives its big, regulatory truck, with communities across the country in its path. HUD defines equity as “access to high quality schools, equitable employment opportunities, reliable transportation services, parks and recreation facilities, community centers, community-based supportive services, law enforcement and emergency services, healthcare services, grocery stores, retail establishments, infrastructure and municipal services, libraries, and banking and financial institutions.”   

As those aware of the Supreme Court’s decision to overturn the EPA’s Clean Power plan know well, the court is increasingly aware of regulatory requirements that go beyond legislative intent.   

Local jurisdictions receiving HUD funds would seem to have grounds to sue to block the proposed rule, which would impose new requirements to receive previously accepted funds continent and new requirements. In 2012, the court overturned the portion of the Affordable Care Act requiring states to expand Medicaid for that reason. Justices Elena Kagan and Stephen Breyer concurred.) 

Racial discrimination in housing is pernicious. For Washington to invoke it to socially engineer neighborhoods across America is dangerous.