A lawsuit by not for profit fair housing advocacy groups against HUD to reinstate an assessment tool for local governments to measure progress in meeting Fair Housing requirements was dismissed in U.S. District Court in the District of Columbia on Friday, August 17, at the request of cabinet department. The decision by Chief Judge Beryl Howell eliminates the request for an injunction to preserve an anti-segregation tool created by the Obama Administration.
The Affirmatively Furthering Fair Housing Rule was added in 2015 to encourage communities to comply with the widely unenforced 1968 Fair Housing rule aimed at ending racial segregation. The online assessment tool was created to measure and monitor compliance in local government agencies.
In January, HUD Secretary Ben Carson announced plans to delay implementation of the AFFH rule, which mandated that jurisdictions identify obstacles to fair housing and submit plans to overcome them, or risk losing HUD funding. On May 8, the suit National Fair Housing Alliance, et al vs. Benjamin C. Carson, Sr was filed claiming the move violated the Administrative Procedure Act (APA). Foreseeing a court defeat, HUD announced it was withdrawing the delay on May 18, but also announced it was removing online access to the tool local jurisdictions need to comply with the AFFH rule. Another HUD notice directed program participants to revert to prior assessment guidance.
While HUD conceded that the new tool is “superior” to prior methods of aiding program participants to meet the AFFH requirements, it also argues that the Assessment Tool was “unworkable.” The plaintiffs contended that withdrawing the tool impeded progress made over the past few years to “fulfill the statutory promise of furthering fair housing policies.”
New York State made a motion to intervene in the case on behalf of the plaintiffs arguing withdrawal of the tool “will make it more difficult for New York’s local jurisdictions to analyze barriers to fair housing choices or identify meaningful actions to address these barriers.”
Judge Howell argued, “The Court is without jurisdiction to micromanage agency choices on program implementation when the plaintiffs bringing suit lack cognizable injury to their mission of having program participants fulfill an important statutory requirement more effectively and also do not have a cognizable injury that is caused by the challenged agency action or fully redressable, even if that agency action order were reversed.” HUD’s motion to dismiss was granted, the request for an injunction denied, and NY’s motion to intervene was also denied.
“We are deeply disappointed that the court did not recognize the importance of immediately and fully reinstating the mechanisms needed to implement the Affirmatively Furthering Fair Housing Rule,” the National Fair Housing Alliance wrote in response. “The requirement is a core element of the original Fair Housing Act. This obligation requires any jurisdiction that uses federal funds to do so in a way that promotes fairness in housing opportunities. This common-sense rule gives jurisdictions the tools they need to identify barriers to fair housing and come up with their own solutions to the unique problems they face…Since the law was passed 50 years ago, HUD has not had an effective means for ensuring compliance with the Fair Housing Act. This ruling means a failed system will continue….This is a significant setback for the millions of Americans that depend on our government to protect and enforce their civil rights.”
