Biden Seeks to Bring Back Obama-Era Rule on ‘Fair Housing’ Rescinded by Trump

Housing Secretary looking to punish communities that ‘do not serve people’

President Joe Biden (L) and former U.S. President Barack Obama (R) rally for Pennsylvania Democratic Senate nominee John Fetterman and Democratic gubernatorial nominee Josh Shapiro at the Liacouras Center in Philadelphia, Pennsylvania, on Nov. 5, 2022. Mark Makela/Getty Images

The Biden administration is looking to restore an Obama-era rule that requires states, counties, and cities receiving federal housing funds to submit “equity plans” to ensure that residential “segregation” within their borders are uprooted—a decision that runs contrary to the Trump administration’s policy that found the rule to be ineffective and complicated.

The U.S. Department of Housing and Urban Development (HUD) will soon publish a Notice of Proposed Rulemaking in the Federal Register that will implement the 1968 Fair Housing Act’s mandate on furthering “fair” housing. The mandate asks the government to “promote fair housing choice, eliminate disparities in housing, and foster inclusive communities,” according to a Jan. 19 press release.

A version of this mandate was implemented under the Obama administration through the Affirmatively Furthering Fair Housing (AFFH) rule. In July 2020, the Trump administration announced that it was ending the AFFH, replacing it with a new rule. Regarding the rule change, the HUD had then said the AFFH regulation proved to be “complicated, costly, and ineffective.”

Speaking about Biden’s new rule change, Demetria L. McCain, principal deputy assistant secretary for Fair Housing and Equal Opportunity, said that “affirmatively furthering fair housing means more than merely steering clear of housing discrimination violations,” according to the Jan. 19 release.

“Today, HUD is taking new, bold action to eliminate the historic patterns of segregation that continue to harm American families. This action will help make the purpose of the Fair Housing Act reality by making it easier for local communities to identify inequities and make concrete commitments to address them.”

Equal Choice v. Equal Outcome

In January 2020 under the Trump administration, the HUD changed the definition of the Affirmatively Furthering Fair Housing (AFFH), shifting the emphasis to “advancing fair housing choice within the program participant’s control or influence” from the earlier emphasis on “address[ing] significant disparities in housing.”

The disparate impact theory of discrimination was invented by the Supreme Court in its 1971 Griggs v. Duke Power Co. decision.

As a result of the theory, governments and businesses can be found liable to practices that are deemed to disproportionately affect minorities even if they had no intent to discriminate. Conservative legal thinkers claim that the disparate theory is inherently unfair and constitutionally dubious.

“Disparate impact theory eliminates the role of choice and moral decisions,” J. Christian Adams, president of the Public Interest Legal Foundation and a former Justice Department civil rights attorney, told The Epoch Times.

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“It turns the law into a statistical game that has no relation to good or bad, right or wrong. People are punished for things they never chose to do, and in our system of law, that’s wrong.”

Equity Plan, Non-Compliant Jurisdictions

According to Biden’s proposed rule, county, state, and local governments as well as public housing agencies have to submit an equity plan to HUD for review every five years. The plan should detail their analysis of the “fair housing” issues facing their communities, as well as goals and strategies to remedy them.

At a press conference on Wednesday, Housing Secretary Marcia L. Fudge said that the administration is “done with communities that do not serve people,” according to Bloomberg.

The White House plan also faces challenges in certain jurisdictions that might not be willing to take steps to desegregate the neighborhoods. Fudge indicated that the federal government will take strict action against such jurisdictions.

“If they are not in compliance, we have the tools to make sure that they either use them properly, or they’re going to have to answer to what we want to do going forward,” Fudge said.