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Relman, Dane & Colfax Sues HUD Over Rollback of Affirmatively Furthering Fair Housing Rule

Relman, Dane & Colfax filed suit in the U.S. District Court for the District of Columbia on May 8, 2018, alleging that the U.S. Department of Housing and Urban Development (HUD) unlawfully suspended a federal requirement that local and state governments address segregated housing patterns as a condition of receiving HUD funding. The lawsuit--filed on behalf of the National Fair Housing Alliance, Texas Low Income Housing Information Service and Texas Appleseed--seeks immediate reinstatement of that requirement and of HUD's obligation to review the fair housing performance of its funding recipients.

While the obligation to "affirmatively further fair housing" (AFFH) has been a part of the Fair Housing Act since its initial passage in 1968, HUD began to take its enforcement obligations seriously only after the Firm's successful litigation against Westchester County, New York. After years of study and consultation with stakeholders--and consideration of more than a thousand formal comments on the proposed rule--HUD adopted comprehensive regulations in July 2015. Known as the AFFH Rule, these regulations require local and state governments receiving HUD block grant funding to conduct an Assessment of Fair Housing every five years. HUD may release that funding only if it accepts the recipient's Assessment as adequately addressing segregation, unequal access to community amenities, and other fair housing problems.

Before HUD's unlawful suspension of the AFFH Rule, Plaintiffs, their members and other advocates around the country had convinced many local governments to adopt strategies to eliminate housing discrimination and promote residential integration.

On January 5, 2018, without having used the notice-and-comment rulemaking required under the Administrative Procedure Act (APA), HUD published a short notice in the Federal Register purporting to "suspend" recipients' obligations to prepare and submit Assessments to HUD for review until 2024 or later for the nearly 1,000 jurisdictions that had not yet completed the Assessment process.

HUD's notice effectively eliminates the robust community engagement requirements that are at the heart of the AFFH Rule, and that give advocacy groups a seat at the table in every community conversation about fair housing problems. The action also eliminates HUD's obligation to review Assessments to ensure that they actually address deep-seated segregation and other fair housing problems, which is a precondition to receipt of HUD funds. As a result, HUD's unlawful action removes civil rights oversight of as much as $5.5 billion per year in block grant disbursements. Without effective enforcement, the complaint alleges, many communities will ignore discrimination and maintain policies that perpetuate segregation. The complaint alleges that HUD violated the APA by failing to provide advance notice or opportunity to comment on the suspension, and failing to articulate any plausible reason for the suspension. Plaintiffs also allege that HUD's action violates HUD's own AFFH duty. Plaintiffs also filed a motion for preliminary injunction, and are seeking an expedited hearing because of the deleterious effect on fair housing advocacy in communities affected by HUD's suspension notice.

The Relman, Dane & Colfax litigation team is led by Sasha Samberg-Champion, Sara Pratt and Michael Allen. Our co-counsel are the Lawyers' Committee for Civil Rights Under Law, the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund, Inc., the Poverty & Race Research Action Council, and Public Citizen Litigation Group.

Noteworthy Pleadings

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