HUD Secretary Ben Carson suggested to the Washington Examiner that because the Supreme Court has upheld the validity of disparate-impact claims under the Fair Housing Act, the Affirmatively Furthering Fair Housing (“AFFH”) rule promulgated by the Obama administration shouldn’t necessarily be rescinded, but rather, “reinterpreted.”
The AFFH rule is, however, incapable of reinterpretation in a manner remotely consistent with sound public policy. As Stanley Kurtz has detailed in these pages, the rule is, quite simply, profoundly flawed and represents an astonishing assertion of federal control over matters properly of local concern.
Even in the short time the rule has been in effect, the Obama administration forced some communities into overreaching compliance agreements that deprived such localities of control over significant aspects of self-governance. For example, Dubuque, Iowa, has a waitlist for Section 8 housing assistance for which it had to advertise in Chicago to attract more Section 8 voucher holders. Dubuque is prohibited from preferring its own residents who are in need of housing assistance over those from outside the state because the Dubuque waitlist is too white. Accordingly, the city is compelled to attract out-of-state blacks to join the housing waitlist, making such list even longer.
It’s true that the Supreme Court has held that disparate-impact claims may be brought under the Fair Housing Act. The fact that such claims may be brought is, however, a far cry from the intrusive racial bean-counting and micro management that is the substance of the AFFH rule. If the rule is not rescinded, lower courts will be guided by the rule’s interpretation of the Fair Housing Act in disparate-impact cases. This is in contrast to the more limited use of race as a matter of last resort in remedying disparate-impact claims. The AFFH rule uses race first, last, and always. Even if HUD somehow reinterprets the rule, private plaintiffs will still rely on the most expansive interpretation, and once such case law is established it will be all but impossible to return to a world in which housing policy isn’t heavily influenced by overt racial engineering.
This rule can’t be reinterpreted or rehabilitated. Rescission is the only sensible solution.