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Last week Trump announced he had eliminated an Obama-era fair housing rule put in place in 2015 to reverse patterns of residential segregation that have been in place for many decades. The move was widely seen as both an attack on integration and also a racial fear mongering strategy to appeal to his white base of supporters three months before the election. To talk about the purpose of the 2015 Affirmatively Furthering Fair Housing rule, the consequences of its elimination, and what we need to do now to support integration we hear from two guests. The first is Richard Rothstein, who is the author of The Color of Law: A Forgotten History of How Our Government Segregated America. He's also a senior fellow at our Institute. The second guest is Stephen Menendian, our Assistant Director and co-author of the Institute's Racial Segregation in the San Francisco Bay Area report series.

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Richard Rothstein: There's nothing that destroys a suburban way of life by putting a duplex in a community, or a triplex in a community, or making it possible for diverse populations to live in that community. When he talks about the suburban way of life, he's talking about an exclusively White way of life.

Marc Abizeid: Hello, and welcome to this episode of Who Belongs?, a podcast from the O&B Institute at UC Berkeley. Last week, Trump announced he had eliminated an Obama-era fair housing rule put in place in 2015 to reverse patterns of residential segregation that have been in place for many decades. The move is widely seen as both an attack on integration and also a racial fear-mongering strategy to appeal to his White base of supporters three months before the election.

Marc Abizeid: To talk about the purpose of the 2015 Affirmatively Furthering Fair Housing, and the consequences of its elimination, we'll hear from two guests. The first is Richard Rothstein, he was the author of The Color of Law: A Forgotten History of How Our Government Segregated America. He's also a senior fellow at our institute. The second guest is Stephen Menendian, our assistant director and coauthor of the institute's "Racial Segregation in the San Francisco Bay Area" report series.

Marc AbizeidHere was our conversation. So, we could just cut to the chase and talk about what we heard from Trump and his Housing Secretary last week about ending AFFH. This is something that was widely denounced by housing justice advocates. So, I guess the first question is, what is AFFH or specifically the Obama-era rule and what problem it's trying to solve?

Stephen Menendian: This is a great question. Let's take it into two parts. First, let's talk about what AFFH is, and then what the rule is. Let's start with Richard on what AFFH is.

Richard Rothstein: Well, in the Fair Housing Act — the 1968 Civil Rights Act — the act said that jurisdictions had to affirmatively further the purposes of this act which has consistently been interpreted as including what Senator Mondale, who sponsored the law, said was the purpose of the act which was to create inclusive communities, non-segregated communities. So since 1968, communities have had an obligation under the Fair Housing Act to take affirmative steps to desegregate. In simple language, that's what the rule is about.

Richard RothsteinNow what the Obama administration did was enact a rule in 2015 that put flesh on the bones of that 1968 rule. There had been interim interpretations of it as well, the Obama administration wasn't the first one to do it. But what the Obama administration did is required jurisdictions that receive community development block grant funds, which is virtually every community, to doing assessments of the obstacles in their community to desegregated housing, to fair housing. And then, to come up with plans to redress those obstacles with the threat — which could never had been actuated in the time that the Obama administration had left since the rule was implemented — but the threat was that if communities did not take plans to redress the segregation that they had uncovered in their assessments, that community development block grants might be withheld from them.

Stephen Menendian: So I'll add a little bit to Richard's [statements] — Richard gave a great start. The first thing to understand is that AFFH was not defined by the act itself. So, there are two provisions that referred to it, Richard mentioned one. The other was that [...] HUD was supposed to take affirmative steps to further fair housing.

Marc Abizeid: This is back in 1968, we're talking?

Stephen Menendian: In the Fair Housing Act itself, which went into effect in 1970. This was basically ill-defined. So courts struggled for 45 years to make sense of what AFFH meant, and they would look at the legislative history, as Richard said, Senator Mondale's statements and others. It wasn't until the Obama administration that HUD actually promulgated a rule and they proposed the rule in 2013. There were two comment periods they went through, so it was a very rigorous and careful approach. The rule they came up with that Richard mentioned in 2015 not only clarified this ambiguous phrase, "affirmatively further fair housing," but it defined a process. I also want to just emphasize that the definition in the Obama rule is phenomenal. It's a multifaceted definition that brings into play segregation, racial and ethnic concentration, and economic factors and opportunities. So, it's a really wonderful definition. But more than just defining it, it created a process and a really robust process. The process did a number of things. But one of the things that it did was it created a separate website, basically a web-based interface that gave data and mapping tools to jurisdictions to conduct their assessment of fair housing, which was basically the new version of the analysis of impediments that they conducted prior to that to comply.

Stephen Menendian: So, this AFH, this assessment of Fair Housing, cities were supposed to submit, and as Richard said, if they didn't do this process, or if they didn't certify that they were making progress, then they were at threat of losing funding. In fact, in 2016, then-Secretary of HUD Julián Castro came to Berkeley and presented at the Berkeley Forum. I was in the audience and I asked him that question — I was looking for the video of it, because it's pretty funny that I was so pointed on it — but I said, "Secretary Castro, if jurisdictions refuse to comply or are half-hearted in their compliance, are you actually going to hold them to account?" He said in his answer, "Yes, we will deny funding to jurisdictions who do not do this."

Stephen Menendian: In the initial phase, [in] the first year of implementation in 2016, there were twenty-two jurisdictions. Then there were 105 that were supposed to submit their assessments in 2017. That's when the Trump administration announced that it was going to — it actually suspended all the assessments, but it wasn't until January of this year, 2020, that it actually created a new rule in the federal register, a proposed rule that was submitted for comment period. Then, just to bring it up to the present: after the comment period, there were lots of comments; just at the end of July, they submitted the final rule which went even further than the proposed rule in January. The proposed rule in January was basically going to just say that you were compliant if you had adequate affordable housing, and there was no explicit discrimination. In the final rule, they made it clear that the President was unhappy with even that proposed rule, so it went even further in rolling back any requirements or compliance — what they thought was a tremendous burden on jurisdiction.

Marc Abizeid: Okay, so that just completely eliminates the 2015 rule. It doesn't modify it or anything like that. I read the document on the Housing website, and it says that "the new rule returns to the original understanding of what the AFFH certification was for the first eleven years of its existence." So, what does that mean?

Stephen Menendian: Well that's just nonsense. What they're basically trying to say is that because HUD hadn't promulgated a rule, defining and clarifying what AFFH meant [...] that this is the original understanding. That's just not true because courts struggled for years, decades to figure out what it meant. You have precedent in jurisprudence defining this phrase. It's just window dressing on a bad decision, on a decision to really take teeth out of AFFH from a regulatory perspective. But maybe Richard can talk about it from a more historical perspective.

Richard Rothstein: Well, yes. What I wanted to say is that it took teeth out of the rule, but the real teeth will come only if there's political support for actually withholding funds from jurisdictions that don't implement plans to desegregate, to put it simply. In 1970, George Romney, without the benefit of a formal rule — he was Secretary of Housing and Urban Development that time, the father of the present-Utah senator — Secretary of HUD George Romney, citing the rule [or] citing the provision in the act rather, that jurisdictions have to affirm further fair housing, actually did withhold funds from three suburban communities that refused to accept African-Americans in subsidized housing, or public housing, or to take any steps to desegregate: he withheld funds from a suburb of Detroit; he withheld funds from a suburb of Baltimore; and he withheld funds from a suburb of Cleveland. There was enormous political blow back from it, and Nixon overrode him, canceled his actions. He [Romney] called it Open Communities, not affirmatively furthering fair housing, but it was the same thing. Nixon canceled the Open Communities Program and that was the end of it. Until the Obama administration's rule in 2015, we heard very little about this since.

Richard Rothstein: But my fear is that if the Obama administration had, or its successor administration other than Trump, had continued with this rule and actually despite what Julián Castro said, he was talking about what one of his successors might do. It wasn't something he was going to take responsibility for because by the end of Obama's second term, none of the jurisdictions that had been proposed plans to desegregate would have been held to account for those plans. So, the real question is, what would happen if a jurisdiction failed to follow through with its plans to desegregate, or even come up with adequate plans to desegregate. Would there be political support for an administration that withheld funds? Many of these are suburban communities. They're heavily White communities. Many of them are a Democratic in voting power. The Democratic Party is a coalition of White suburbanites, otherwise perhaps termed as NIMBYs, "not in my backyard." So, it's a coalition of White suburbanites, and low-income and minority and culturally-progressive liberals.

Richard Rothstein: A lot of work needs to be done to prepare the ground for the AFFH actually to have impact in desegregating. I think it's important not to place too much emphasis on the rule to the exclusion of the political support that we need to develop in order to have an understanding in the country at large about why it's important to take these steps to desegregate. I think the Black Lives Matter movement played an enormously positive role in awakening the country to racial inequality, but it needs to take the next step and really educate people about the importance of this rule, so that if it ever comes to the point where it becomes necessary to enforce it, there won't get the blow back we had in 1970.

Stephen Menendian: So to jump in here, Mark and Richard, I think we all anticipated that as the Obama-era rule began its implementation process, that there would be a backlash, right? Trump is really playing on... It's a little bit ironic because he killed the rule but then leveraged [it], tried to gin up and stoke fear about it in a way that he was actually responsible for undermining fear because he nullified it in a sense. [...]

Stephen Menendian: The rule, I think, was clever in doing a number of things. First, it phased in slowly to try and actually I think do some of that groundwork, not the political or cultural side or the political anticipation piece that I think Richard was referring to, but it really did create a hand-in-glove process. The process did produce, [it] yielded some really interesting results. For example, of the jurisdictions that were submitted, basically HUD had sixty days to respond to the assessment. If it didn't, it was automatically approved; if HUD did respond, if it was rejected, then it was supposed to work with the jurisdiction within the next forty-five days to make revisions. Some of the submissions that were generated through this process are fascinating documents. Los Angeles was one of the jurisdictions and they produced a 200-page document that's a really remarkable forward-thinking kind of roadmap for racial equity. So, I think these documents were very, very useful. There were some, I believe, that were actually rejected.

Stephen Menendian: The window for working with HUD didn't fully toll, rather, before this whole thing was suspended by the incoming Trump administration. But I think that there were some interesting things that came out of it and that would have come out of it even further. One of the complaints the Trump administration had in the proposed rule of January 2020 is they said that, "The existing rule was too complex to be effectively completed by staff without specific statistical and mapping knowledge, because of the demographic analysis requirement." Now, that's why HUD created this interactive tool, and the interactive tool which they just took down was wonderful because it meant that not only jurisdictions could use this tool to look at demographic data and segregation, but anyone — fair housing advocates, concerned citizens could use this tool. So, it created a set of tools and a process that I think was very valuable. That process in itself and that tool in and of itself had value independent of AFFH. Now, all of that is gone.

Marc Abizeid: What you're saying actually contradicts that statement by Ben Carson, the Housing Secretary, because he said in the last week or two that the 2015 rule was "unworkable and ultimately a waste of time for localities to comply with." So, I mean, basically you're saying that's just hogwash?

Richard Rothstein: Well, I'd say that it's very cynical on Carson's part. Carson came into office claiming — because he claimed to be a libertarian and this is something that libertarians believe — that we should abolish, everywhere, prohibit[ive] zoning ordinances that required only single-family homes on large lot sizes. Libertarians consider those zoning rules to be a violation of freedom, to prohibit the property owner from constructing a duplex or a triplex or any other kind of housing on property that he or she owns. So for them now to repeal the rule that required jurisdictions to analyze the extent to which their zoning rules — this was an important part of the rule — the extent which their zoning rules effectively, reinforced and perpetuated racial segregation is a violation of their own stated principles, and quite a cynical reversal from the high-minded claims that Carson made when he came into office about the extent to which zoning could perpetuate racial segregation.

Marc Abizeid: All right. So, what do you think about the justification — Trump's justification — that's what Ben Carson said, but Trump, he is talking about AFFH as being, these are his words, "Hell for suburbia," that people work really hard and try to go and live the suburban dream, and that fair housing is destroying their lives. What do you make of that statement, Richard? I'll just add one more thing, the way he's framing it is that government's coming in and harming these communities.

Donald Trump: "So, we ended a rule that was a very horrible rule for people in suburbia, in the suburbs. For years, they've lived there and they wanted to destroy their lives and destroy what they have."

Marc Abizeid: But there's a big irony there, which you write about in your book, Color of Law, when you look at who are the people who have actually been harmed by government policy in the past, by the creation of segregation [and] the demolition of integrated neighborhoods.

Richard Rothstein: Well, all I can say is that this claim about the suburban way of life is a dogwhistle for an old White segregated way of life. We all know what he means when he talks about the suburban way of life. There's nothing that destroys a suburban way of life by putting a duplex in a community, or a triplex in the community, or making it possible for diverse populations to live in that community. When he talks about the suburban way of life, he's talking about an exclusively White way of life. That's what his listeners understand him to mean, and that's what he's playing on when he makes those kinds of statements.

Stephen Menendian: Just to add to what Richard said, what's going on is [that] I think it's beyond a dogwhistle. [I]t's implicit in the superficial sense, but he's really just continuing his demagogic rhetoric, trying to stoke fear, trying to gin up votes. He's in a precarious electoral position and he's doing anything he can to stoke fear. It's ridiculous because number one, this rule, the original version of the rule as it was beginning its implementation on the Obama administration, is more process than anything. Even though Julián Castro, when I asked, said that they would ultimately hold up money, we were miles away from that, right? Because if a plan is rejected, then you have to work with HUD to try and improve it. That doesn't mean you're just going to lose money the next day. I think you would have to demonstrate a severe and egregious pattern of exclusionary behavior before they would even reach that point. There would be plenty of lawsuits trying to stay any order to deny money. He [Trump] is just continuing his pattern of trying to gin up fear and stoke fear.

Stephen Menendian: What Richard said, that there's this notion that suburbanization is coded White in some way, it also couldn't be further from the truth. There are very few entirely White suburban jurisdictions. Even in the Bay Area, which is a very diverse place, the most White suburban jurisdictions are basically between two-thirds White, and basically seventy-five percent White, three-quarters White. Even in States that are whiter than California, a lot whiter than California, it's very rarely the case that the jurisdiction is entirely White.

Marc Abizeid: One thing I wanted to know is what you think this entails for other kind of strategies, maybe government programs for integration. What are the avenues now for localities that are trying to integrate, that are trying to solve this problem of segregation?

Richard Rothstein: Well, I want to emphasize again that, not that this is all unimportant, it's very important, but more important is developing a new civil rights movement that's going to make it politically possible to implement even the best plans. So, the AFFH rule was a good rule but in itself was not going to desegregate anybody unless we have the political support that's going to create momentum for desegregation, for inclusive communities. A rule itself can't do it. So, I'm sure that if we have a new administration that's not the Trump administration, the rule and something close to it would be reinstated. But we're talking years between the time a community makes a plan to desegregate, or its officials make a plan to desegregate, and the time that HUD is going to withhold funds from that community for failing to implement its plans.

Richard Rothstein: We have example after example after example of well-intended public officials who try to make a provision for affordable housing in their communities and the so-called NIMBY backlash prevents those plans from being implemented. A new book by Connor Dougherty called Golden Gates describes the turmoil in Lafayette, California when public officials made a genuine effort to accommodate a developer's plan to create housing that was not simply single-family home housing. The book documents extensively the political impossibility of implementing those plans. I think we need to pay attention not only to the rules, which we should pay attention to, I'm not minimizing it at all, but also to the other half of it, and that is how do we get the political support to implement those rules in a full fashion?

Stephen Menendian: Well, part of the way that we do that is by raising continued awareness of both the reality, the extent of the reality, and the effects of this reality. It's one thing to say, "exclusionary zoning produces racial disparities," but it's another thing to pinpoint the extent to which that exists in the Bay Area or wherever your community is.

Stephen Menendian: So, we have a report coming out very soon. It's going to show the extent of single-family zoning in the Bay Area, and by single family zoning, we're referring to zoning that is exclusively zoned for single-family homes. In the Bay Area, literally, eighty-three precent of all residential zoned land is exclusively for single-family zoning, which means essentially that only seventeen percent of residential land is available for apartments, for multifamily housing, for dense housing, and that has an incredibly exclusionary effect. So what we did is we looked to see basically the relationship between segregation and single-family zoning, and there's a clear one. For example, basically all of the communities that are above ninety percent single-family zoning — not all of them, but a significant number of them — are about seventy percent White or more. So, there's a relationship between percent-white and percent-single-family zoning. You can do that, you can look at that for a number of other effects which we're planning to release a report around.

Marc Abizeid: That wraps up this episode of Who Belongs? Thank you to our guests Richard Rothstein, author of the Color of Law: A Forgotten History of How Our Government Segregated America, and Stephen Menendian, our assistant director and co-author of the Institutes Racial Segregation in the San Francisco Bay Area report series.

Marc Abizeid: For links to some of their work and other resources, including a transcript of this interview, visit us online at belonging.berkeley.edu/whobelongs. Thank you for listening.