“Open gov” advocates and civic hackers have had an exciting few months. The White House has launched a series of bold initiatives aimed at advancing the use of new tech and increasing data sharing – and hired some very smart folks to lead the way. But the federal bureaucracy is enormous, consisting of more than 1.8 million employees across 15 departments. How is this bold, digital agenda filtering down to the folks who will actually have to implement it?

For years the Department of Housing and Urban Development (HUD) has been seen by many as more a tool to fulfill political favors than an agency charged with providing and ensuring safe, fair, and affordable housing. Secretary Alphonso Jackson, who led the agency from 2004-2008, was forced to resign amidst a flurry of patronage and conflict-of-interest scandals. He once famously warned a conference of black contractors, “Why should I reward someone who doesn’t like the president, so they can use funds to try to campaign against the president? Logic says they don’t get the contract. That’s the way I believe.”

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*this post was co-authored by Rob Breymaier

Today, it is likely that most if not all of the 1,200+ states, counties, and municipalities across the country that receive CDBG funds are revisiting their plans and procedures. The Anti-Discrimination Center of Metro New York v. Westchester County settlement, announced last week, requires Westchester to make up for years of neglect regarding the affirmative furthering of fair housing – namely, addressing the impediments to fair housing choice that perpetuate segregation. As HUD’s Deputy Secretary Ron Sims noted during the press conference announcing the settlement, after nearly a decade of lax federal oversight communities around the nation are now “on notice”.

The case makes clear that recipients of federal housing and community development funds “must comply with, inter alia, the provisions of the Housing and Community Development Act, including the requirement that it affirmatively further fair housing”, which it goes on to define as pro-integrative housing policies. Long ignored and often misunderstood, affirmative furthering of fair housing has always been about promoting, fostering, and sustaining integration in the housing market.

The case could not be more timely. While a significant victory for fair housing and integration advocates, the Westchester settlement is small in comparison to the benefit that proper regulations from HUD on the duty to affirmatively further fair housing may provide. Regulations that are currently being drafted by HUD staff and are slated to be published for public comment within the next few months.

To understand the potential implications of the settlement and new regulations, take a look at the numbers. Under the settlement, Westchester County will spend roughly $50 million on affirmatively located affordable housing developments over the next 5 years. Annually, HUD allocates over $20 billion to affordable housing through CDBG, HOME, Section 8, voucher, and public housing funds. Billions more dollars in Low-Income Housing Tax Credits are used annually to finance affordable housing programs.

Currently, regulations regarding the affirmative furthering of fair housing are vague, process-oriented, unaccountable, and largely ineffective. Updating them to require measurable actions with targeted outcomes, subject to oversight and review, would result in powerful positive impacts. We believe these regulations should:

1. Provide a strong definition of affirmative furthering of fair housing as housing policies that promote integration of those protected by the Fair Housing Act. Recipients must show that they will develop new affordable housing in a manner that expands housing options for protected persons, particularly geographic expansion to high-opportunity communities with plentiful jobs, good schools, and quality services.

2. Require that Analyses of Impediments and Fair Housing Action Plans address systemic and structural barriers to fair housing choice. In analyses of impediments, recipients should be required to address how current patterns of segregation and points of resistance to diversity and integration (such as municipal zoning, industry practices, and popular (mis)perceptions) limit housing choices and integration. Recipients’ fair housing action plans must address measurable actions with specified goals to overcome these impediments.

3. Afford MPOs (Metropolitan Planning Organizations) with the resources and authority to determine regional priorities and disparities regarding affirmative furthering of fair housing. Overlapping local and state recipients should be required to cite these regional issues in their analyses and plans.

4. Clearly state that all federal community development funds should promote regional equity and greater opportunity in disinvested areas. Strategically spending economic, education, and infrastructure dollars to increase opportunity in disinvested areas will balance regional development and enhance the quality of life for everyone.

5. Improve transparency and accountability by compelling recipients to post their plans online, hold them open for public comment, and engage the community in the planning process. These are key components of the Obama administration’s commitment to good government and will reduce the oversight burdens on HUD by empowering local fair housing advocates with critical information.
   

Forty-one years later after its passage, we now have a chance to realize the full promise of the Fair Housing Act. HUD’s forthcoming affirmative furthering regulations will determine the future of our metropolitan regions, and we hope that the drafters within HUD are taking the time and care to get them right. While many in the fair housing community are anxious to see progress, the implications of these new rules are simply too large to rush them. With more than $20 billion annually at stake, these new regulations will determine if we will begin to actively promote fairness and regional equity or continue to segregate opportunity along racial and economic lines.

Take, for example, adopting regulations to clearly define and expand what it means to “affirmatively further fair housing” (AFFH). A requirement of recipients of federal housing dollars (and a few others), this executive order mandates that programs and plans aren’t just neutral when it comes to segregation and fair housing but rather actively advance opportunity and integration. At the end of the Clinton administration draft rules were circulated and public comments were received, but this work was abandoned under Bush. Much to their credit, the new administration at HUD has moved quickly to rectify their 8-year absence on the topic.

HUD stepped into the Westchester lawsuit and briefly withheld the county’s CDBG funds, rightly scaring many recipients around the country to get serious about their obligation. In nearly every public appearance on the subject of opportunity or fair housing, HUD’s leadership mentions the issue and their intentions to take it seriously. And just last week, HUD hosted a meeting +  webcast + call-in to hear from the public on what new AFFH regulations should include.

MoveSmart.org, an organization I co-founded and direct, submitted the following comment to this meeting in response to their question about how a planning guide on AFFH for municipalities and counties could be improved:

A vast majority of both renters and buyers now begin and conduct a significant portion of their housing search online. While it is encouraging to hear the new Assistant Secretary address enforcing fair housing online, there’s been no discussion yet of using the web to actively promote fair housing. I think it is critical that the Planning Guide include explicit instructions on ways that new technologies can be used to affirmatively further fair housing. Outreach and education efforts should include online components and advertising, new affordable housing developments should be marketed online, and neighborhoods challenged by housing seeker prejudice and ignorance should promote themsleves to online housing seekers in order to reduce racial and ethnic segregation and affirmatively further fair housing.

Additionally, recipients of federal funds should be compelled to both use the web to share information about their planning process, share the actual plan documents in real time, and solicit feedback on their various plans before they are finalized. It would be fantastic for HUD to model this behavior by continuing to solicit feedback for this process via the web – even adopting some of the more innovative and participatory discussion features used on WhiteHouse.gov and their “Open for Questions” system.

While it’s great that HUD is hosting (and promises to continue to host) webcasts on the soon-to-be-draft regulations, the real test is on how these regulations will compel municipalities and counties across the country to become more interactive and participatory. HUD should view what is already happening on WhiteHouse.gov and happened during the transition as a minimum requirement, not a maximum suggestion.

My specific recommendations:

• All plans funded with federal housing dollars must be posted online in a forum that allows for both user suggestion and user voting on suggestions on their fair housing components separate and apart from other sections of said plans (see Obama Urban Policy for an excellent example of such a tool).
• Comments submitted offline must be entered into the online system, and comments must be held open for a meaningful period of time (minimum of 20 days).
• Comments must be archived and that archive must be shared to the public, online, and in a non-proprietary format.
• Notices of upcoming open comments must be shared via RSS or some other standard, non-proprietary web publishing format.
• All of this information should be aggregated into HUD’s own website where the public can subscribe via RSS or e-mail to notifications of new “open for comment” plans by geography or type of plan.
• Incentives should be awarded when next-generation innovative and collaborative solutions like the Livable Streets Initiative are employed.

At a reception earlier today the Assistant Secretary for Fair Housing and Equal Opportunity at HUD, John Trasvina, said that, “I read [Justin's] blog to learn about new technologies” after I asked him about this posts’ topic during a Q&A session. This post is specifically written for him and others at HUD who are now in the process of drafting these regulations and planning how to accept comments on them.

Under President Obama, data transparency, private-sector innovation, and a renewed commitment to expanding opportunity could revolutionize housing and urban planning. But just as proponents of equity, open government data, and social entrepreneurship are being appointed to key positions, and while the administration is still young, the new HUD/DOT sustainable communities initiative illustrates why the devil is in the details.

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Since its passage in 1968, the Federal Fair Housing Act has prohibited landlords from making discriminatory statements in housing advertisements. (Note: It also applies liability to everyone involved in the process of publishing the ad, but that’s another post for another time.) Just as classified ads have moved from the printed newspaper to the online classified website, so too have landlords’ discriminatory statements. This prohibition is unique in federal law, one of the only limitations on speech rooted in civil rights’ protections.

And HUD has now published clear instructions on how to violate it and avoid prosecution.

In a memo entitled “Guidance for Handling Allegations of Internet-based Discriminatory
Advertising against Unidentified Respondents”, Deputy Assistant Secretary for Enforcement and Programs Cheryl Zeigler instructs HUD investigators to dismiss complaints against landlords whose identities are obscured by websites and tied only to e-mail addresses. For reasons unknown to this author but which he hopes are rooted in ignorance rather than laziness, HUD has decided that some violations of federal law simply aren’t worth the trouble.

In fact, I’m nearly certain that HUD’s decision is born out of ignorance, because they have clearly demonstrated their commitment to prosecuting these specific types of violations to the FHA. In HUD v. Godlewski - a case I worked on while at the Chicago Lawyers’ Committee for Civil Rights – a landlord who hung a sign in the front window of his otherwise-exempt apartment building reading “no kids” was hit with more than $100,000 in damages, civil penalties, and attorneys fees.

This is not to say that HUD shouldn’t adjust its procedures in the handling of complaints against landlords made anonymous by the web. Not at all – by simply rearranging the steps of their typical investigations (determining whether the text of the ad is discriminatory before identifying the respondent) and adopting clear guidelines on what is and what is not a discriminatory statement (rescinded by another awful HUD memo in 1994), HUD could focus its limited resources on aggressively pursuing the landlords that create these ads.

Let’s hope that once HUD’s new leadership is approved by the Senate, procedures like this will be reformed.

At a US House of Representatives hearing last week on “Livable Communities, Transit Oriented Development, and Incorporating Green Building Practices into Federal Housing and Transportation,” HUD Secretary Shaun Donovan and Department of Transportation Secretary Ray LaHood announced an new partnership. A joint task force, the “Sustainable Communities Initiative,” will address the intersection of transportation and housing affordability.

While any genuine effort to address housing affordability is welcome, this new HUD/DOT task force is particularly exciting because it reflects a new understanding of the complex issues that confront metropolitan regions and the sometimes surprising ways they intersect. Encouraging smarter planning, expanding the definition of affordability, and researching the livability of communities work in tandem to increase the use of public transportation, decrease our carbon footprint, reduce urban sprawl, enable the smarter use of regional resources, and improve affordable housing options for families. In short, this is one of those rare initiatives that seem to naturally align a multitude of interests.

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For the first 38 minutes, it almost sounded like the Senators pitied him.

The Senate’s Committee on Banking, Housing, and Urban Affairs spent nearly 40 minutes of the two-hour confirmation hearing warning President-elect Obama’s HUD secretary nominee Shaun Donovan that he would be taking over a neglected, under-funded agency rife with problems that has been relegated to the second tier of the federal bureaucracy and is facing a housing crisis of unknown proportions. Republicans and democrats alike praised Donovan for his “willingness” to take on this challenge and at times seemed genuinely surprised that someone of his experience and expertise would take such a challenging job. As many of the Senators noted, barring some startling revelation his confirmation is virtually assured.

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Through Change.gov, the public is being offered a first-ever opportunity to peek inside and offer opinion on nearly the entire transition process. A large team of academics, former bureacrats, and leading advocates have been appointed by President-Elect Obama to vet possible cabinet-level officials and conduct a thorough review of every federal bureaucracy they might lead.

Nine of these folks have been tasked with a review of the Department of Housing and Urban Development. The HUD review leads are Xavier de Souza Briggs of MIT, Roberta Achtenberg, and Bruce Katz of the Brookings Institute ; team members include Ingrid Ellen of NYU, Nicholas Retsinas of Harvard’s Joint Center on Housing Studies, Henry Fernandez of the Center for American Progress, Saul Ramirez, Jr. of NAHRO, Kenneth Zimmerman of Lowenstein Sander, and Robert Weissbourd of RW Ventures.

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