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Slamming the courthouse door on equal access to housing

Secretary of Housing and Urban Development Ben Carson,

Secretary of Housing and Urban Development Ben Carson, flanked by Vice President Mike Pence and President Donald Trump, speaks at a ceremony to honor the Rev. Martin Luther King Jr. in 2018. Photo Credit: EPA-EFE / REX / Shutterstock / Jim Lo Scalzo

The U.S. Department of Housing and Urban Development has proposed a rule that undermines the enforcement of the Fair Housing Act of 1968 — a mainstay in fighting housing discrimination.

The implications for Long Island are significant, because structural racism in housing is central to our region being ranked one of the 10 most racially segregated metropolitan areas in the United States. 

Long Island’s longstanding residential segregation and continuing housing discrimination confirm what Congress knew when it approved the FHA: prohibiting discrimination and offering redress when discrimination occurs is inadequate.

Congress tasked HUD with furthering fair housing and ensuring that jurisdictions receiving HUD funds show the steps they take to redress racial segregation and other barriers to fair housing. Furthermore, the FHA’s Discriminatory Effects Standard, also referred to as Disparate Impact, prohibits unjustified policies and practices that have a disproportionate, adverse effect on protected classes. In other words, the act seeks to combat segregation and discrimination — whether intentional or not — through Disparate Impact claims.

HUD’s new proposed rule, whose 60-day public comment period ends in mid-October, would undermine Disparate Impact claims. For example, that would allow municipalities and businesses such as banks, realtors and management companies to claim that their policies, practices and activities are not intended to discriminate, and that, therefore, a plaintiff’s claim of discrimination is not valid. The fact that the municipalities' policies are discriminatory would not matter. What's more, a defendant could claim that a specific practice reflects standard industry practices, and that defendant would be able to discriminate without recourse.

Long Island’s history underscores the importance of the Disparate Impact standard. In a well-known case in Huntington, the Second Circuit Court of Appeals upheld use of the standard, ruling that the town violated the FHA because Huntington's zoning confined the construction of apartments only to a predominantly black neighborhood, thus creating a discriminatory result.

In 2014, the federal government sued the Town of Oyster Bay for violating the FHA. In its complaint, the U.S. government alleged that two housing programs to develop below-market rate housing for first-time homeowners and senior citizens discriminated against African Americans because the programs give preference to residents of the predominantly white town. This produces a discriminatory result. Very few African Americans live in Oyster Bay (3 percent of all residents) and fewer than 1 percent of those families were income-eligible for the programs. Yet blacks in nearby towns were income-eligible but excluded.

A recent federal District Court ruling against Garden City shows that the use of exclusionary zoning ordinances, which limit the type of housing that can be built, reinforced residential segregation. At issue in these cases was not the communities’ intent to discriminate but the discriminatory result of their policies.

ERASE Racism is joining with other civil rights groups to oppose the proposed HUD rule. The broader challenge for Long Island, though, is to address housing discrimination, even as the federal government is withdrawing from its responsibility to enforce the law.

Elaine Gross is the president of ERASE Racism, a Syosset-based nonprofit.

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