At a training last month for hundreds of fair-housing advocates, Housing and Urban Development Secretary Ben Carson crowed about his suspension of an Obama-era rule mandating that communities fix long-standing patterns of segregation.
The audience, many of whom had spent years working to make sure marginalized groups get equal access to housing, was stunned. “Tone deaf,” said one attendee.
The scene illustrated the uncomfortable reality for Carson as he nears the end of his second year as HUD secretary. Though he is charged under the law with eliminating discriminatory housing practices, Carson is also a longtime skeptic of using government power to remedy such inequality .
Beyond his attempts to roll back the agency’s fair-housing rules, Carson is overseeing a department whose fair-housing budget and staffing have been cut. And, notably, he has departed from the practices of recent Democratic and Republican predecessors of using their secretarial power to root out systemic racial discrimination by launching broad-based investigations into bias by banks, real estate companies and others.
Carson has only once used his authority as HUD secretary to scrutinize widespread housing discrimination, moving ahead under public pressure on an investigation against Facebook that was initiated during the Obama administration.
President Barack Obama’s HUD secretaries used the tool — known as “secretary-initiated complaints” — an average of 10 times per year, while President George W. Bush’s second HUD secretary used it an average of five times per year, according to a Washington Post examination of the agency’s annual fair-housing reports to Congress.
“If you’re going to have this position, you have to use it,” said Kim Kendrick, who began championing the use of secretary-initiated actions as the HUD assistant secretary for Fair Housing and Equal Opportunity during Bush’s second term. “You can potentially have an impact nationwide.”
The Obama and Bush administrations wielded the HUD secretary’s enforcement powers to investigate home insurance companies that refused to sell policies in African American neighborhoods, real estate brokers who refused to show certain houses to black home buyers, and mortgage lenders that illegally denied loans to black and Hispanic borrowers or charged them higher rates, according to HUD records.
The intense scrutiny of racist or otherwise discriminatory housing practices resulted in financial compensation for large numbers of victims and forced offending companies to change practices, according to HUD’s reports to Congress.
Defenders of Carson, who as a presidential candidate decried a federal effort to desegregate American neighborhoods as “failed socialist experiments,” argue he is not retreating from the agency’s civil rights mission. Rather, HUD spokesman Jereon Brown said, the agency is prioritizing a backlog of 600 individual complaints of discrimination instead of initiating broad-based actions.
More than half of the individual complaints pertained to discrimination on the basis of disability, according to HUD. A quarter pertained to race, and fewer than a third to national origin.
“Nearly 500 people had their cases resolved” since 2017, Brown said, “versus focusing our resources on larger secretary-initiated cases.”
Each year, HUD receives thousands of complaints from individuals alleging discrimination that the agency is required to investigate. Unlike broader secretary-initiated cases that seek redress for victims who may not even have been aware that their rights had been violated, individual complaints may focus on issues such as wheelchair access at an apartment building, sexual harassment by a landlord or allowances for service animals, former and current HUD officials say.
Carson’s focus on responding to individual allegations of bias over proactively seeking solutions to patterns of disparity aligns with Republican orthodoxy, said Robert Driscoll, a deputy assistant attorney general in the Justice Department’s civil rights division during the Bush administration.
“If an individual is rejected for housing because he is black — those kinds of cases should always gain traction in a conservative administration,” Driscoll said. “Republicans are more likely to see problems with defining discrimination based on group statistics.”
Other civil rights attorneys say that while it’s important to resolve individual complaints of discrimination, those efforts are unlikely to address structural inequality or result in widespread change.
“The fact there has only been one complaint by Secretary Carson says to everyone that HUD will no longer be in the business of aggressively enforcing fair-housing laws,” said Aderson François, a professor at Georgetown University Law Center who directs the Institute for Public Representation Civil Rights Law Clinic. “HUD is in danger of becoming something of a zombie agency.”
Among steps Carson has taken to scale back civil rights enforcement: Municipalities no longer have to submit plans to desegregate their communities to receive HUD funds. The 2015 Obama administration rule was an attempt to push local governments to comply with the 1968 Fair Housing Act requiring municipalities to use federal money to address historical housing discrimination.
Since Carson’s suspension of the rule, communities in Miami and Memphis have stopped participating in regional efforts to analyze housing patterns and disparities in access to jobs and good schools, according to Lisa Rice, president and chief executive of the National Fair Housing Alliance.
The Memphis Housing Authority, which oversees subsidized apartments and the development of affordable units, has pulled out of the process to dismantle segregation. So have a handful of jurisdictions in the Miami area. That means fewer resources and less data, Rice said, making the task of understanding the barriers to equality even more difficult.
Kendrick said Carson is poorly positioned to use his authority to investigate communities that perpetuate discrimination given his attempt to dismantle the 2015 rule — even though practices such as isolating low-income housing to the same neighborhood limits opportunities.
“It’s not just housing. It’s jobs. It’s education. It’s experiences and opportunity,” Kendrick said. “But you can’t say the rule is flawed and then go and try to enforce it.”
HUD in June also gave notice that it would reexamine its 2013 “final” rule barring banks, landlords and others in the housing industry from enacting policies that may appear innocuous — such as requiring criminal background checks for tenants — but could wind up discriminating against minority groups.
The Supreme Court in 2015 established that such practices can be deemed discriminatory under the Fair Housing Act even if there was no explicit intent to do so, a concept known as “disparate impact.” But some conservatives view such policies as an attack on capitalism, and Carson, in a 2015 op-ed in the Washington Times, said that such “government-engineered attempts to legislate racial equality create consequences that often make matters worse.”
At times, though, Carson, a retired neurosurgeon, has shown a willingness to be swayed by civil rights advocates.
After initially suspending a preliminary investigation into Facebook that began under Obama in late 2016, Carson in August filed his sole secretary-initiated complaint against the platform.
He accused Facebook of giving landlords and developers advertising tools that made it easy to exclude groups protected by the Fair Housing Act. Among the many ways Facebook did so, HUD said: literally drawing a red line around majority-minority Zip codes and not showing housing ads to users who live in those areas.
Facebook said its policies prohibit discrimination and that it would continue working with HUD to address the agency’s concerns. The company last week released a civil rights audit that says Facebook has strengthened its advertising policies to address allegations of “facilitating discriminatory ad targeting.”
The investigation continues. Brown, the HUD spokesman, said Carson chose to exercise his authority against Facebook because the case “potentially affects millions.”
Dennis Parker, director of the racial justice program at the American Civil Liberties Union, said the Facebook case encapsulates the hidden discrimination enabled by modern technology that is best investigated on a wide scale through a secretary-initiated complaint. Victims of this sort of “modern-day redlining” would not otherwise have known to file individual complaints to HUD, he said.
“Who would think that the fact that they surfed the Web looking for a mosque might mean information would not be provided to them about housing?” Parker said. “You would have no way of knowing you were being excluded without someone looking at broader issues to recognize that this is a brave new world of discrimination.”
In past years, HUD career staffers often brought to the attention of senior political appointees suggestions for secretary-initiated investigations.
But Anna Maria Farias, Carson’s assistant secretary for fair housing and equal opportunity, told managers during a conference call that “unless you’re the secretary, you shouldn’t be initiating them, leaving the impression that career staff had usurped authority,” said a HUD official, who spoke on the condition of anonymity because the person was not authorized to comment publicly. The official said Farias’s statement indicated that she did not understand the role of career staffers in flagging potential violations.
Some career staff members say they would be more inclined to flag discrimination cases involving religion, disability, sexual harassment or familial status over race or national origin because, as one staffer put it, “those are the only protected classes this administration seems to vaguely care about or understand.”
Brown, the HUD spokesman, said the agency does not prioritize certain types of discrimination over others.
In deciding whether it is worth investing time and resources in filing a secretary-initiated complaint, “you have to look at the merits of each case and the number of folks affected,” Brown said.
The bipartisan U.S. Commission on Civil Rights is investigating a broader pullback in civil rights enforcement as Trump’s attempts to shrink the federal government cast doubt on agencies’ ability to uncover and investigate violations of anti-discrimination laws.
Congress, following Trump’s recommendations, cut the 2018 budget for staffing in HUD’s fair-housing office by more than $2 million. Trump, in his 2019 budget, has also proposed cutting $3 million from fair-housing activities, including grants to organizations that help enforce civil rights law.
Since 2003, staffing in the fair-housing office, which investigates housing discrimination that is based on race, national origin, religion, sex, familial status and disability, has fallen by 40 percent — and that decline has accelerated under Trump.
Normal attrition and retirements have been exacerbated by the slowed pace of hiring and the departures of career staffers who perceive a diminished commitment to the agency’s fair-housing mission, HUD officials have said.
“People are just leaving and no one is trying to stanch the bleeding,” one official said. “It’s dysfunctional.”
In an era of austerity, the agency should make greater use of the secretary’s authority, said Kendrick, the Bush appointee.
“It provides you with the opportunity to do more with less,” she said.
Carson’s limited actions so far on racist housing practices send a chilling message and will ultimately hurt the agency’s efforts to enforce civil rights law, said François, the Georgetown Law professor.
“What the secretary is telling the market is, ‘We have looked at the entire state of fair housing in the U.S., and we do not believe that there is anything going on that is so significant that requires us to put our resources, reputation and prestige behind enforcement,’ ” François said.
“If the folks you are supposed to regulate know you are essentially not enforcing the law, they have no incentive to behave.”