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.
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.
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.
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.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.