Wednesday, March 4, 2020

Housing Policy Ideas from the Presidential Platforms: Fair Housing

This post is part of an ongoing review of 2020 presidential candidate platforms on housing (full review available here).  Today's post focuses on fair housing proposals.  Here is an excerpt:

Broadening protections under the Fair Housing Act.  Many of the presidential candidates seek to expand the Fair Housing Act to under- or un-protected classes.  At present, the Fair Housing Act’s provisions prevent discrimination in various aspects of the real estate market on the basis of race, color, religion, sex, handicap, familial status, and national origin.

New classes proposed for protection under the Fair Housing Act by candidates include “veteran status” (Bloomberg, Klobuchar, O’Rourke) and “military status” (O’Rourke). 

A variety of other proposals focus on extending protection to sex and gender classes, which was expressed by various candidates as “sexual orientation” (Bloomberg, Klobuchar, O’Rourke), “LGBTQ+” (Sanders, Castro), “sex and gender identity,” “sexual identity” and “gender identity” (Steyer, Harris, O’Rourke).  Several platforms expressly voiced support for the Equality Act, which is proposed legislation intended to address discrimination against lesbian, gay, bisexual, transgender and queer individuals in a variety of contexts, including housing.  

Other classes proposed for addition to the Fair Housing Act include “marital status” (Warren, Harris) and those with a “criminal record” (O’Rourke).

Source-of-income protection.  Protecting source-of-income under the Fair Housing Act was also popular (Bloomberg, Buttigieg, Sanders, Warren, Castro, Harris, O’Rourke).

Disparate Impact Rule.  In the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court held that disparate impact claims are cognizable under the Fair Housing Act.[2]  In October, 2019, HUD issued a proposed rule that offered an interpretation of the Fair Housing Act disparate impact standard that many commenters felt was restrictive and would limit the viability of such claims.  Several candidates expressly stated that they would seek to address this rule and make disparate impact claims easier to bring under the Inclusive Communities ruling (Bloomberg, O’Rourke).

Affirmatively Furthering Fair Housing (AFFH) Rule.  At the end of the Obama administration, HUD promulgated a rule that sought to give teeth to the Fair Housing Act’s statutory directive that “all executive departments and agencies” should operate their programs in “a manner affirmatively to further” fair housing.  The rule requires communities to submit plans outlining their efforts to fight segregation.  In 2018, the Trump Administration extended a key reporting deadline under the AFFH Rule, and in January, 2020, the Trump Administration issued a proposed rule that would roll-back many of the AFFH Rule’s major provisions.  A number of candidates propose to reinstate the rule as it was originally envisioned by the Obama Administration.  (Bloomberg, Sanders, Klobuchar, O’Rourke, Castro, Patrick).

Other proposals.  There was a proposal to ban landlords and rental agencies from discriminating against applicants based upon a of bankruptcy, if the individual could demonstrate current cash flow and stability requirements for occupancy (Steyer).

Another proposal would protect renters by preventing the blacklisting of people who have been to court over eviction, though specific mechanism for this protection were not mentioned (Klobuchar). 

Several candidates addressed discrimination on the basis of prior arrests or convictions (Klobuchar, Steyer, Castro).  Klobuchar would prohibit landlords from asking about prior criminal convictions on lease applications, a proposal that she calls “ban the box” (Klobuchar, Steyer, Castro).  Klobuchar proposes that background checks be permitted only after making a conditional offer of housing. 

Another proposal would ensure that new technology products, such as financing and placement algorithms, meet established civil rights standards (Steyer).

Several candidates proposed new agencies to address issues related to fair housing.  Sanders called for a new National Fair Housing Agency, which he envisioned operating like a Consumer Finance Protection Bureau for housing matters, while Bloomberg called for a new Housing Fairness Commission.

Enhancing enforcement of existing housing laws was also a priority for some candidates.  Harris proposed to utilize HUD, the Federal Reserve, and the Federal Housing Finance Agency to enhance Fair Housing Act enforcement in conducting audits and fair housing tests to prevent discrimination at the point of sale.  Several candidates wanted to give more funds to the HUD Office of Fair Housing and Equal Opportunity for enforcement.

For those who want to read the entire review of the platforms, it is available here.  The review looks at candidates' takes on fair housing; housing development funding; home buyer and renter assistance; landlord-tenant; zoning reform; addressing the legacy of redlining; housing vouchers; homelessness; fair lending; rural communities housing policies; tribal communities housing policies; climate resilience and housing policy; and existing public housing policy.

https://lawprofessors.typepad.com/land_use/2020/03/housing-policy-ideas-from-the-presidential-platforms-fair-housing.html

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