Biden exec order lays foundation for restoring fair-housing rule

President called on HUD to study impact of Trump changes

President Joe Biden (Getty)
President Joe Biden (Getty)


President Joe Biden has taken the first step toward reinstating a fair housing rule that was scrapped by the Trump administration last year.

In an executive order signed Tuesday, Biden called on the secretary of the U.S. Department of Housing and Urban Development to study the effects of repealing the Affirmatively Furthering Fair Housing rule. (Biden has tapped Ohio Rep. Marcia Fudge to be HUD secretary; her confirmation hearing will be held on Friday.)

The rule required local governments that receive federal funds to identify discriminatory housing policies and map out plans to combat them.

The Trump administration repealed the 2015 rule this past summer, replacing it with a measure that allows localities to self-certify that they are abiding by fair housing laws. At the time, Trump praised the move as a win for the suburbs and for local governments, as they would no longer be saddled with a “burdensome and costly” mandate that opened the door to low-income housing.

Opponents, while acknowledging that AFFH wasn’t a silver bullet for fighting discrimination, denounced the repeal as a step backward in reversing decades worth of exclusionary housing policies.

The repeal has also drawn criticism from some multifamily developers and groups.

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“The legacy of redlining is still with us, as communities across America — including here in New York — continue to struggle with segregation,” Jolie Milstein, president and CEO the New York State Association for Affordable Housing, which represents affordable housing developers, said in a statement about the executive order. “We must vigilantly guard against overt and implicit discrimination in housing.”

The executive order also instructs HUD to assess Trump’s changes to the 2013 “disparate impact” rule, which upped the pleading standards for making certain housing discrimination claims. Housing advocates have argued that those changes made it significantly more difficult for minority tenants and prospective buyers to take legal action when subjected to unintentional discrimination, since they needed to meet a five-pronged test just to pursue such allegations.

In October, a federal court judge temporarily halted those changes from going into effect, saying they ran “the risk of effectively neutering disparate impact liability under the Fair Housing Act,” Politico reported at the time.

Biden’s order aligns with his campaign promise to reverse steps the Trump administration took to undo Obama-era fair housing policies. The order instructs HUD to “take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements that HUD administer its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act … including by preventing practices with an unjustified discriminatory effect.”

Those steps will likely include reinstating AFFH and tossing out the changes to the disparate impact rule. For Fudge — if she’s confirmed — that could mean simply declining to move forward with the disparate impact changes, since they are already blocked by the court. Restoring AFFH will likely be more involved.

In a statement, Elaine Gross, founder of Long Island-based civil rights group ERASE Racism, said the executive order acknowledges the role local, federal and state governments play in reinforcing housing discrimination. However, she said, more needs to be done.

“President Biden deserves credit for this important early action putting the force of the federal government behind opposing housing discrimination rather than advancing it,” she said. “The federal government’s commitment to fair housing, however, should be clarified by Congress and not left to be a byproduct of the commitment of any particular president.”