The Fair Housing Failure—Where Even the Liberal North Whistles Dixie

The Obama administration's new fair housing rules are the strongest in decades, but may not mean much without meaningful enforcement. 

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In 2006, a civil-rights lawyer named Craig Gurian filed suit against Westchester County, New York, charging that the affluent county just north of the Bronx had been engaging in exclusionary housing practices that prevented people of color from moving into the county's upscale suburban communities.

Facing up to $150 million in fines for having, according to a federal judge, "utterly failed" to fulfill its obligations under the 1968 Fair Housing Act, Westchester entered into a landmark anti-discrimination settlement. The agreement committed the county to build 750 affordable housing units by 2016 in the whitest locales and market them in largely non-white communities throughout the county and in New York City. Even so, that number is a drop in the bucket of Westchester's population of just under a million people.

That fall, Westchester voters ousted the Democratic county executive who signed the deal, electing Republican radio show host Rob Astorino, who campaigned heavily in opposition to the settlement. According one lawyer from the Department of Housing and Urban Development (HUD), Astorino told local leaders, "he would not force anyone to build anything."

Westchester is an iconic suburban American dream, with 19th- and early 20th-century mansions, tony country clubs, and excellent public schools. That idyllic picture, however, mostly describes northern Westchester, with its affluent and nearly all-white towns and villages such as Chappaqua, adopted home of the Clintons. The southern part of the county, including the city of Yonkers and such formerly all-white towns as New Rochelle, is now an inner-ring suburb: mostly African American, Hispanic, and West Indian. For the county as a whole, the population is 23 percent Latino and 16 percent black.

In many of the county's wealthier villages and towns, however, zoning laws prevent developers from building multi-family homes (much less, subsidized ones), in effect excluding low- and moderate-income people of color. This class exclusion combines with a legacy of racial exclusion, which has kept blacks and Hispanics out of the most upscale communities.

Considering Westchester's long history of racial-steering and redlining, it's no surprise that the county's affluent white communities have been resistant to the settlement, albeit in the name of local rights and aesthetic concerns, and not racial segregation.

Today, Westchester claims that 454 of the 750 units have been built in the 31 eligible communities that are less than 3 percent black and 7 percent Hispanic. The Department of Justice is currently disputing this number, and Westchester may be fined $60,000 per month until requirements are met. According to a memo from the U.S. Attorney for the Southern District of New York published on July 21, Westchester has failed on a number of accounts.

Since the Consent Decree was entered, the County Executive failed to promote legislation to prohibit discrimination based on source of income, as the County had agreed; the County has failed for years to submit to HUD an analysis of impediments to fair housing, as the County had agreed; and the County has now both missed a benchmark for the construction of affordable housing units under the Consent Decree as well as failed to take legal action to address local opposition to the project-violating two more provisions of the Consent Decree.

The failed Fair Housing Act enforcement in Westchester is by no means unique. Since the passage of the Act in 1968, prohibiting discrimination on the basis of race, sex, religion, and other protected classes in the sale or rental of housing, it has been thoroughly documented by journalists and scholars that cities and counties around the United States have failed to fulfill their obligation to promote fair-housing practices. In 2007, a federal panel assessed the Act and came to the conclusion that "the current federal system for ensuring fair housing compliance by state and local recipients of housing assistance ha[d] failed."

One particularly fraught component is Title VIII of the law, known as Affirmatively Furthering Fair Housing (AFFH). This provision requires that recipients of HUD funding take an active role in achieving integration within their communities. Jurisdictions are legally required to create a list of impediments to integration in their communities, take actions to overcome these impediments, and record progress that is being made.

This affirmative action provision has met massive resistance. George Romney, former governor of Michigan and father of Republican presidential candidate Mitt Romney, was appointed HUD secretary several months after the passage of the Fair Housing Act, and has been the only official serving in the role to demand that communities "affirmatively further fair housing" and actively dismantle what he called "the white noose" surrounding the black inner city.

When then-President Nixon learned of Romney's agenda, which was receiving strong opposition from Southern and white Northern suburban communities, he quickly shut it down and sent Romney packing. Over the next four decades, presidents-Republican and Democrat alike-have followed Nixon's precedent in maintaining the segregated status quo, perhaps with the exception of Obama.

So why has enforcement been so unsuccessful? The answer is massive political resistance. Many communities like Westchester have been unwilling to actively promote integrated living patterns and HUD has been equally unwilling to demand them.

Craig Gurian, the lawyer who filed suit against Westchester County, says local opposition is no longer explicitly racist, but implicit within communities and local governments. "There are aesthetic concerns. They are traffic concerns. There are actually concerns that themselves are quite illegal, like 'you're going to be bringing more children into the neighborhood,'" said Gurian. "But much more frequently [opposition] is unspoken. … This is so deeply baked in, that people don't actually have to say anything."

In July of this year, following the Supreme Court ruling upholding the Fair Housing Act, the Obama administration issued a revised version of the AFFH rule-one that many see as an opportunity to improve affirmative enforcement. The long-awaited rule aims to restore the Act's promise to desegregate both inner cities and suburbs by providing tools and data that will enable local governments to assess impediments to integrated living patterns within their communities. In addition to these resources, AFFH will require that communities hold public forums on fair housing and undergo five-year progress assessments monitored by HUD.

Yet both the left and the right have drastically overstated the potential of the new rule. While conservatives have decried "a war on suburban America" and "social engineering," the response from liberal politicians and activists has been overly optimistic. Minnesota Congressman Keith Ellison said, "It moves our nation towards a real solution." Cashauna Hill, director of a housing-rights advocacy group in New Orleans, called it "crucial guidance" in "achiev[ing] the vision of the Fair Housing Act."

Those who have commended the new rule-including the mayors of New York, Chicago, Austin, Houston, New Orleans, and Sacramento-do have grounds for cautious optimism. AFFH provides housing-rights advocates and organizations new weapons against local opposition. "I do believe that the rule potentially does set up fair-housing organizations to approach local governments," said Jim Carr, a housing policy expert at the Center for American Progress. "Local governments must now articulate and highlight where they are failing."

Other housing-rights activists have been enthusiastic that Obama, unlike previous presidents, has given housing segregation so much attention, even devoting his radio address to the issue. "The fact that the Obama administration put this on-after many, many, many years where previous HUD secretaries have been basically shied away from affirmatively furthering fair housing-I think is a very big deal," said Sheila Crowley, president of the National Low Income Housing Coalition.

In other words, the AFFH rule gives much-needed publicity to an issue that's long been slipped under the rug. But for the thousands of communities like Westchester with strong local opposition, and where a new rule was the most needed, AFFH may mean very little.

The rule does not include specific benchmarks or guidelines for jurisdictions. There are no new regulations banning exclusionary zoning practices like those in Westchester.

More importantly, there is no enforcement component. HUD Secretary Julián Castro stated firmly in an interview with PBS that "enforcement is a last resort." And if the Westchester case reveals anything, it's that enforcement, not access to data or planning tools, has always been the crux of the Fair Housing Act's failure. "Will it actually change the footprint of segregation in America? I think that's very doubtful. I don't see the enforcement piece," said Carr.

Gurian went even further in his criticism of the rule. "The whole premise of the rule-drafting process was fundamentally in error," he said. "The premise was that somehow the problem has been that jurisdictions have not had the information necessary to understand what's going on. That has absolutely nothing to do with modern American history. The problem is that there's massive resistance to changing the segregated status quo."

Gurian believes that the only effective method of re-configuring segregated living patterns is with enforcement rather than planning rules. If the AFFH rule is not being enforced, most communities won't go about diversifying racially homogenous neighborhoods on their own. "It is always the case that appeasement breeds more resistance," Gurian said. "You have to make it clear that retention of the status quo is not an option on the menu-that the only options are having there be change that you participate in shaping or having change that is enforced without your input or cooperation. If one of the choices is to maintain the status quo, guess what? Lots of jurisdictions are going maintain the status quo."

One incentive for enforcement that has been carried out only a handful of times is the withholding of HUD block grants from local jurisdictions that repeatedly fail to satisfy fair-housing requirements. Westchester is finally on the very short list of jurisdictions where grant funds are currently being withheld. The new rule makes clear that HUD Secretary Castro is vehemently opposed to freezing block grants on a broad scale.

If Westchester is an example of the ways in which networks of local opposition result in failure of the Fair Housing Act, the county's history also highlights the fact that opposition to fair housing is a significant problem in blue states. Westchester is home to some of the highest-profile Democrats in the country-such as the Clintons and Governor Cuomo-yet none of them have spoken up about the fair-housing crisis, nor suggested that the court order be enforced. Hillary Clinton also declined to comment on the Obama administration's recent housing policy announcements.

"This is very, very telling," said Gurian. "It's not just the people who actively want various demographic patterns to remain in place. It's those who look away, who say 'this would not be good for my polls if I were to weigh in here.' Can you imagine if this Westchester business were going on in a suburban county in the South? [Democrats] would say 'Oh, this is terrible. Is it 2015 or is it 1955?' And they would be able to do that, but not here in New York."