By: Eliza Collison

Trump made protecting suburbia a pillar of his campaign to appeal to the “suburban housewives.”[1]  He won the suburbs by a margin in the last election, so the support is key for this November’s election.[2]  These remarks about protecting suburbia from low income housing are, therefore, an effort to retain votes from a key facet of his voter base, white suburban housewives.[3]  While on its face these comments may appear to be merely rhetorical, Housing and Urban Development (HUD) in fact announced a final rule titled “Preserving Community and Neighborhood Choice” appealing the Obama-era “Affirmatively Furthering Fair Housing” final rule.[4] 

In short, the rule gives local officials significantly more jurisdiction over what constitutes fair housing and how to promote its accessibility.[5]  The prior regulations required that communities receiving federal block grants to receive funding from HUD strictly comply with the “Assessment of Fair Housing.”[6] The comprehensive assessment involved a 92 question test to ensure local communities were affirmatively funding fair housing.[7]  Now, the new rule will put more autonomy in the hands of local and state governments to set housing standards and lower accountability for discriminatory housing practices.[8]  Secretary Carson stated the new rule “affirmatively [furthers] fair housing,” meaning any action rationally related to promoting “fair housing” or  “housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination and accessible under civil rights laws.”[9]   Critics of the rule, however, claim the rule does the statutory bare minimum in assuring fair housing standards are met and is subject to legal challenges because the rule did not go through notice and comment procedures.[10]

This rule will make it more difficult for individuals to challenge discriminatory zoning regulations, meaning this rule’s impact will largely depend on state and local zoning regulators.[11]  This will have a major impact on the economy and density of low income housing.[12] Now that the rule eases restrictions on local zoning boards, it will push low income housing further into more densely populated urban areas.[13] With less oversight, housing prices will actually rise and developers will benefit at the expense of low income communities.[14]

This is not the first time an administration has tried to “save suburbia.” New Deal legislation promoted single family homes through zoning practices.[15]   Exclusionary zoning practices exacerbates racial and economic segregation.[16]  Discriminatory screening practices are already present, but this rule will make it harder for individuals to challenge these practices.[17]   Just this past year, black home ownership fell to 40%, its lowest level since 1950.[18]   This disparity not only affects home ownership, but also the disparate access to schooling and community resources.[19]   While local communities do tend to have control over zoning practices, the lack of oversight will have a nationwide impact.[20]

Trump’s promises to save suburbia are much more than rhetorical fodder for his political base. In addition to appealing to the suburban housewife demographic, Trump’s words have come to fruition in the form of HUD policies.  While previous regulations required local housing authorities to jump through more hoops, there was more accountability for fair housing. The new rule is more vague and has less federal oversight over zoning regulations. If history teaches us anything, this regulation will have a long lasting impact on zoning practices for decades.[21]  

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[1] Domenico Montanaro, Trump Tries To Appeal To ‘Housewives’ And White Suburbs, But His Views Seem Outdated, NPR (July 26, 2020, 7:01 AM), https://www.npr.org/2020/07/26/895228366/trumps-trying-to-appeal-to-real-housewives-and-white-suburbs-but-they-re-declini.

[2] See id. (noting that Trump is currently down fifteen points with suburban voters).

[3] Kriston Capps, What Trump’s Campaign Against ‘Abolish the Suburbs’ Was Actually About, Bloomberg CityLab (July 23, 2020, 6:44 PM), https://www.bloomberg.com/news/articles/2020-07-23/what-trump-s-campaign-against-abolish-the-suburbs-was-actually-about.

[4] Preserving Community and Neighborhood Choice, 85 Fed. Reg. 47,899-01 (Aug. 7, 2020) (to be codified at 24 C.F.R. pts. 5, 91, 92, 570, 574, 576, 903).

[5] Brett Samuels, Trump Administration ends Obama Fair Housing Rule, The Hill (July 23, 2020), https://thehill.com/homenews/administration/508745-trump-administration-ends-obama-fair-housing-rule.

[6] Capps, supra note 3.

[7] Mike Sorohan, HUD Terminates Affirmatively Furthering Fair Housing Rule, Mortg. Bankers Ass’n (July 23, 2020), https://newslink.mba.org/mba-newslinks/2020/july/mba-newslink-friday-july-24-2020/hud-terminates-affirmatively-furthering-fair-housing-rule/.

[8] See Trump Administration Eliminates Affirmatively Furthering Fair Housing Rule, NLIHC and other Advocates Condemn Action, Rhetoric, Nat’l Low Income Hous. Coal. (July 27, 2020), https://nlihc.org/resource/trump-administration-eliminates-affirmatively-furthering-fair-housing-rule-nlihc-and-other; see also Linda Morris & Alejandro Agustin Ortiz, Trump Administration’s New Rule Will Slam Door to Fair Housing, ACLU (Oct. 16, 2019), https://www.aclu.org/news/racial-justice/trump-administrations-new-rule-will-slam-door-to-fair-housing/.

[9] Sorohan, supra note 7; Evan Weinberger, Trump Administration Repeals Obama-Era Fair Housing Rule, Bloomberg Law (last updated July 23, 2020, 3:46 PM),  https://news.bloomberglaw.com/banking-law/trump-administration-repeals-obama-era-fair-housing-rule?context=search&index=1.  

[10] Weinberger, supra note 9.

[11] Nat’l Low Income Hous. Coal., supra note 8.

[12] Id.

[13] ACLU, supra note 8.  

[14] Id.  

[15] Priya S. Gupta, Governing the Single Family Home: A (Brief) Legal History, 37 U. Haw. L. Rev. 187, 211-12 (2015).

[16] See generally James J. Hartnett, Affordable Housing, Exclusionary Zoning, and American Apartheid: Using Title VIII to Foster Statewide Racial Integration, 68 N.Y.U. L. Rev. 89 (1993) (discussing historical practices of exclusionary zoning).

[17] Nat’l Low Income Hous. Coal., supra note 8.

[18] ACLU, supra note 8.

[19] See id; see also Harnett, supra note 16, at 108-09 (explaining that integration of poor, minority families into middle class suburban neighborhoods improves quality of life, including childcare services and employment access).

[20] See Gupta, supra note 15, at 238-39 (explaining that courts treat cities as autonomous, thus perpetuating racially exclusionary zoning across cities).

[21] See id.