New fair housing rule from HUD Secretary Ben Carson

July 23, 2020:- The federal Department of Housing and Urban Development (HUD) has published a new rule about affirmatively furthering fair housing. It defines what the term “affirmatively further fair housing” actually means and makes it easier for communities to show that they are, indeed, doing just that (i.e. affirmatively furthering fair housing). This new rule replaces an old rule.

2015 rule

In 2015 President Obama’s HUD adopted a regulation that required towns and cities to explain in detail how their zoning, land use laws, and services such as public transportation were affirmatively furthering fair housing.  This article from the Atlantic magazine describes the rationale for the Obama administration’s decision.

2018 suspension

In 2018, citing the time-and-cost burdens that the rule-mandated assessment tool put on local governments,  HUD Secretary Ben Carson suspended it. Several organizations, including the ACLU and the National Fair Housing Alliance, went to court in an unsuccessful effort keep the 2015 assessment tool in place. According to this ACLU statement, suspending it “puts housing integration in serious jeopardy.”

The State of New York joined the lawsuit. For Governor Cuomo’s announcement about the case click here. For a brief account of New York City’s track record as landlord from the National Apartment Housing Association click here. For another revealing story about affordable housing in New York, click here.

Several other States (including Massachusetts) and some cities (including Oakland, California; Portland, Oregon; and Seattle, Washington) signed on to an amicus brief in support of the effort to stop Secretary Carson suspending the 2015 rule. The new rule that Secretary Carson announced would seem to moot the case.

Disparate Impact

The new HUD rule about AFFH does not affect the need for local governments to avoid policies that have a disparate impact on protected classes, a form of discrimination that the Supreme Court of the United States recognized in Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) and that the Massachusetts Supreme Judicial Court recognized in Burbank Apartments Tenants Ass’n v. Kargman, 474 Mass. 107, 122 (2016). To browse the SCOTUSblog material on Inclusive Communities click here. For Secretary Carson’s National Review article on the decision and its implications for HUD’s 2013 disparate-impact rule, click here.

My own post from 2013 discusses the disparate-impact rule that HUD had adopted prior to the SCOTUS decision in Inclusive Communities and the rule’s potential to address racially segregated housing and schooling patterns in an around Springfield, Massachusetts. In the 7 years since I wrote that post, I have not heard of any real progress on that front. If you know of some positive steps or have practical suggestions, please share them.


What should State and local government do (or not do) here in Massachusetts in order to reduce racial segregation in housing? If you have success stories or a policy proposal, I would like to hear from you.

New housing rule: one more step toward desegregation?

Advocates of desegregation should take heart, and planners should take notice, because at last it’s official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD’s new rule states that “[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin” 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute’s discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice “caused or predictably will cause a discriminatory effect.” The burden then shifts to the respondent to prove that the practice “is necessary to achieve one or more [of the respondent’s] substantial, legitimate, nondiscriminatory interests.” If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests “by another practice that has a less discriminatory effect.”

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.

Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it “creates, increases, reinforces, or perpetuates segregated housing patterns.” Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.

One More Step Toward Fair Housing?

A new federal rule that could help reduce segregation is waiting for White House approval. If the administration supports it, the rule would confirm that housing practices – including zoning decisions – that are facially neutral but discriminatory in effect violate the federal Fair Housing Act. Congressional Republicans oppose the proposal, as the Daily Kos reported in June, and used an appropriations bill to prohibit HUD from putting it into operation. Whether the federal rule gets the go-ahead or not, I hope that Massachusetts will adopt a similar measure to strengthen our state’s anti-discrimination law.

So what is disparate impact? The term describes cases where the plaintiff does not have to prove that the defendant intended to discriminate. It applies where an action that is neutral on its face has the effect of denying a racial or ethnic group its right to equal housing opportunity or of creating, perpetuating, or increasing racial segregation. Disparate impact is at the center of the Mount Holly case, which may go to the Supreme Court of the United States.  Last year the U.S. Department of Housing and Urban Development (HUD) drafted a rule that would “establish uniform standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act” but it’s not clear whether the rule will come into effect before the Supreme Court renders its decision in Mount Holly.

Readers who followed the Lyman Terrace case, in which I represented the tenants, will know that our key claim was this: demolition of Lyman Terrace would have a disparate impact on Hispanic/Latino residents. That was the basis for commencing the action in the Massachusetts Commission Against Discrimination (MCAD), as opposed to Housing Court.

Que Viva Lyman Terrace

Nobody was suggesting that the housing authority or city officials were intentionally discriminating against Hispanic/Latino residents. But the effect of their decision, I argued, was that in a city that lacks enough affordable housing, demolishing the 167 units at Lyman Terrace would force the complex’s residents, who are overwhelmingly Hispanic/Latino, out of Holyoke. So the class-action complaint asked the MCAD to use its power under Section 5 of the state’s anti-discrimination statute, Chapter 151B, and request an injunction from the Superior Court prohibiting the housing authority from moving ahead with demolition.

The housing authority had applied to HUD for permission to demolish Lyman Terrace, initially with the support of the City. Before the MCAD case even moved to the investigatory stage, Mayor Alex Morse withdrew the City’s support for the housing authority’s HUD application pending a more thorough public review of the options. With no need for an injunction, the tenants withdrew the case without prejudice (meaning they can revive it if necessary). Because of the mayor’s thoughtful and courageous decision, I did not need to persuade the MCAD that demolition would violate the state’s equivalent of the Fair Housing Act. I am confident that the precedents weighed in our favor, but the case would have been more straightforward if the state statute or regulations were clearer.

Now that we have some breathing space, I believe the MCAD should revise its regulations – or ask the Legislature to amend the statute – to confirm that housing practices that have a disparate impact do, in fact, violate Chapter 151B. Certainty is a valuable asset in many areas of law, particularly where the potential litigants have limited resources. It should not fall to low-income tenants to bear the burden of establishing that decisions by Massachusetts lessors (private and public) that have a disparate impact on communities of color are unlawful. Surely our legislators and state agencies can do that.