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The Trump administration is threatening the right to Fair Housing. We’re fighting back. You can too.

By Matt Warren, Western Center Housing Attorney 

I’m a bit of a nester. I spend a lot of time thinking about my lived environment — how to make my office more productive, my home cozier. I obsess over the color of light bulbs, indoor plant selections, and furniture placement.

I’m also a housing attorney, so I think a lot about where and how people find and create a safe home for themselves, and how they establish their own sense of cozy.

The sites, conditions, and availability of housing in our country (and throughout the world) have long been limited based on socially-defined characteristics: gender, occupation, physical or mental ability, race, country of origin, family composition, religion. These characteristics and more have shaped the places and communities where people live in the United States. Perhaps more importantly, they also shape the limits of where people cannot live, and the condition of the housing they can access.

The federal Fair Housing Act (FHA), initially adopted on the heels of the assassination of Dr. Martin Luther King, Jr., is one of our most important tools to fight against the discrimination and limitations that have defined housing practices in our country’s history. The FHA is a foundational tool for advancing housing opportunities for entire communities. Housing advocates use the FHA to challenge the practices of landlords who unfairly refuse potential tenants, the lending practices of banks that prey on vulnerable groups, and zoning changes by local governments that limit equitable opportunity.

In August, the Department of Housing and Urban Development (HUD), the federal agency tasked with upholding and advancing the FHA, proposed a rule that would dramatically change the way that the FHA can be used. Courts and HUD have interpreted the FHA as including the “disparate impact” theory of housing discrimination for decades, but the new rule proposes to severely limit how and when victims of discrimination can sue under this theory.

Disparate impact is discrimination that occurs when a facially neutral practice has a discriminatory effect on a protected class. Examples of disparate impact include occupancy standards that exclude families by restricting the number of people allowed to live in a unit together, the practice of targeting historically segregated minority neighborhoods for predatory loans using zip codes or other proxies, landlord screening policies that exclude persons with criminal histories (this is particularly discriminatory since Blacks and Latinos are incarcerated at disproportionate rates), and cities limiting construction of multi-family housing that is affordable for working-class people — a majority of whom are people of color.

Proving discrimination using disparate impact has become essential in civil rights enforcement. As described by Justice Kennedy in Texas DHCA v. Inclusive Communities Project (2015), “It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent [discrimination] that might otherwise result from covert and illicit stereotyping.”

HUD’s proposed rule includes a lot of changes to existing law. First, instead of providing a clarifying interpretation of the law, the rule adds a five-element test for plaintiffs at the pleading stage. Right now, victims of discrimination can move forward with a claim if they’re able to show that a practice caused a discriminatory effect. The new five-part test would require them to essentially know the inner workings of the often complex entities in charge of their housing before they head to court, which will result in fewer cases. Second, the proposed rule attempts to erase part of the disparate impact theory entirely so practices that “perpetuate segregation” are no longer actionable.

Third, the proposed rule would make it easier for entities facing allegations of disparate impact discrimination to evade responsibility for their actions. Part of the proposed rule allows a business entity to evade responsibility for discriminatory impacts if they use an algorithm to deny someone a housing opportunity. Algorithms are routinely used for housing decisions, many of which reflect and maintain existing disparities in the housing market. Think of it this way: because of redlining and other historical disadvantages, people of color have been explicitly and systematically excluded from credit-building opportunities compared to white counterparts. Algorithms that base loan decisions on existing creditworthiness perpetuate disparities in access to loans, meaning historical disadvantages continue and deepen. HUD’s proposal would shield actors who rely on these algorithms from liability.

All of these changes are aimed at making it more difficult to allege discrimination, while limiting liability for landlords, banks, and insurance companies. It will make it more difficult for people to find and create homes by allowing housing-related businesses to unfairly limit where and how they can live.

The proposed rule impacts other areas of law as well. Victims of discrimination in employment and education have also utilized disparate impact theory to level the playing field. These areas of law borrow significantly from each other, with many advocates and courts pointing across subjects for the persuasive authority of similar discrimination cases. Even though HUD’s proposed rule specifically targets housing discrimination enforcement, it will have serious impacts on the interpretation of disparate impact in other civil rights fields.

The proposed rule is also hugely significant because it weakens our ability to combat racism. Racism and white supremacy are baked into our country’s identity, impacting our sub-conscious, our interpersonal interactions, our institutions, and our broader social systems. Racism has traditionally been understood as blatant and intentional discrimination against minorities—but now, sophisticated housing providers know not to overtly treat people differently, and discrimination often takes the form of “neutral” policies that end up harming people of color. It’s still profitable to discriminate against people of color and other protected minorities because those groups have less access to social benefits and wealth. By maintaining these kinds of race-neutral policies, businesses reinforce historical advantages of whites while perpetuating disadvantages of people of color.

The proposed rule change reflects this administration’s favoritism toward real-estate businesses, but it also reveals white fragility in action. The proposed rule attempts to impose the intent standard on all allegations of discrimination, shielding “color-blind” policies that preserve an inequitable status quo. It ignores that differential treatment of people of color continues to happen at subconscious levels, focusing the standard instead on differential treatment.

The disparate impact standard remains relevant because acts that perpetuate discrimination have continuing, real, and negative impacts even where there is no malicious intent. HUD’s proposed changes to the disparate impact rule facilitates systemic oppression via banal intentions.

The only positive thing to say about the proposed rule is that it is not yet in effect. HUD is in the process of soliciting comments, until October 18, 2019, to comply with the requirements for adopting administrative rules. You can have an impact on the proposed rule by submitting a comment to HUD explaining why it would have a harmful impact on you, your family, your friends, your neighbors, your tenants, your clients, or your community.

Our team at Western Center on Law & Poverty is partnering with the National Housing Law Project and the Shriver Center on Poverty Law on the Fight for Housing Justice Campaign. We’ve created a website that includes resources, as well as a comment portal that allows you to submit your comment to HUD. It is vital that HUD hear from as many people as possible.

Please help us fight against this attempt by the Trump administration to limit housing choice; expanding housing choice is essential for creating a more equitable country, and safe, secure housing is fundamental to our humanity. Let’s make sure everyone has a place to cozy up, fuss over lighting, and obsess over where the couch should go.

Thousands of California renters with Section 8 vouchers can’t use them. What lawmakers are doing about it

As California struggles with a crisis in affordable housing, state lawmakers are trying to improve a severe shortage of housing available to renters who have federal Section 8 vouchers.

The vouchers allow tenants to pay only 30% of their income toward rent, with federal assistance to pay the rest. But most landlords do not accept tenants who pay with vouchers, saying they are too burdensome.

…“It’s billed as a golden ticket,” said Alexander Harnden, a policy advocate for the Western Center on Law and Poverty. “At this point, I describe it as a ticket to last summer’s movie. If you can find where it’s playing, that’s great. Otherwise it’s just a piece of paper.”

Read more 

Statement on Trump Administration’s Proposed Rule Change for Fair Housing

The Trump Administration has proposed a new rule interpreting an important civil rights theory in a way that would significantly weaken enforcement of federal anti-discrimination laws. The rule would make it more difficult to allege and prove discrimination by a housing provider.

For more than 50 years, the Fair Housing Act has served as a vital tool in expanding housing opportunity for protected groups. In that time, the shape of housing discrimination has shifted away from overt, differential treatment, as sophisticated housing providers no longer advertise their intent to exclude protected classes. Housing discrimination increasingly takes the form of “disparate impact,” where a facially-neutral policy or practice has an adverse impact on minorities. The ability to allege discrimination via disparate impact is incredibly important for enforcing fair housing laws.

The Administration’s proposed rule increases the standard for bringing a disparate impact suit to the point that it would become, in practice, close to impossible. It suggests that landlords, banks, insurance companies, and other powerful entities should not be responsible for the discriminatory housing practices they perpetuate, and ignores the fact that housing segregation in the United States remains ubiquitous, and access to housing unequal. The underlying patterns, practices, and problems that create segregated housing have not been solved, especially for people of color – the proposed rule disregards that reality.

The proposal includes multiple provisions that limit civil rights enforcement, including:

  • Transforming the current, three-part, burden-shifting test into a five-part prima facie evidentiary test that would require a plaintiff to identify and demonstrate that a specific policy has a discriminatory outcome in order to move past pleading;
  • Forcing plaintiffs to plead a “robust causal link” between the defendant’s housing practice and the resulting injury;
  • Limiting liability for housing providers when they rely on automated decision-making systems and algorithms that perpetuate discrimination in the housing market;
  • Providing insurance companies some safe harbor from liability where they can assert compliance with state law; and
  • Changing the strong vicarious liability standard in fair housing law to a piecemeal, state-by-state assessment of agency-principal liability.

These changes, largely inconsistent with existing case law, inhibit civil rights enforcement by making it more difficult for victims of discrimination to bring their case to court.

The proposal is in line with the Trump administration’s attitude toward American race relations – which is either to ignore it or exacerbate it. The proposed rule assumes racism and discrimination are things of the past, and that all that we need to do now is passively denounce overt racism. That fantasy ignores the reality of discrimination in the contemporary United States, particularly within the housing market. It also ignores a growing body of implicit bias research that says preferences against people of color are deeply ingrained in our society, and that deliberate intervention is necessary to prevent such bias from determining social outcomes.

California and the rest of the nation is in the midst of a housing crisis. Additionally, the majority of people in California are part of a protected minority group, but the people with power, money, and influence are still disproportionately white. Without active protections, that dynamic is a recipe for discrimination and stagnation. This proposed rule would cripple access to housing at a time when California and the country can’t afford to lose any ground in the quest to keep people housed.

The proposed rule has not yet been adopted. We and our partners in California and beyond will fight vigorously against the rule as it makes its way through the administrative process. Stay tuned for updates on how you can comment and advocate for the preservation of this essential civil rights enforcement tool.

Advocacy groups file suit to block Trump’s new ‘public charge’ immigration rule

Several advocacy groups filed a lawsuit Friday to block the Trump administration’s recently finalized “public charge” rule, which would make it harder for legal immigrants to stay in the country.

The National Immigration Law Center, Western Center on Law and Poverty, National Health Law Program and Asian Americans Advancing Justice filed the complaint in a California federal court.

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PRESS RELEASE – Western Center & Partners File Lawsuit to Stop Trump Administration “Public Charge” Rule

FOR IMMEDIATE RELEASE

Trump “Public Charge” Regulation Unlawful, Lawsuit Claims

Nonprofits aim to block policy targeting millions of families of color

 

SAN FRANCISCO — Nonprofits serving immigrant communities and advocates for racial equity, health, children, farmworkers, and working families today filed suit to block implementation of the Trump administration’s “public charge” regulation, which threatens millions of immigrant families — disproportionally families of color. La Clínica de la Raza et al. v. Trump et al., filed in the U.S. District Court for the Northern District of California, asks the court to declare the regulation issued by the U.S. Department of Homeland Security (DHS) unlawful and unconstitutional. DHS finalized the regulation on August 14, 2019.

“The public charge regulation is an attack on the culturally diverse families we serve, threatening their health and their very lives,” said Jane Garcia, chief executive officer of La Clínica de La Raza. “We will stand with our patients and their families and fight this.”

In addition to La Clínica de la Raza, the suit was brought by African Communities Together, the California Primary Care Association, the Central American Resource Center, the Council on American Islamic Relations – California, Farmworker Justice, the Korean Resource Center, the Legal Aid Society of San Mateo County, and Maternal and Child Health Access. The plaintiffs are represented by the National Immigration Law Center, Asian Americans Advancing Justice – Los Angeles, the National Health Law Program and the Western Center on Law and Poverty.

The complaint argues that the regulation was motivated by racial bias against nonwhite immigrants and asks the court to strike it down as a violation of Equal Protection under the Fifth Amendment of the U.S. Constitution. As indicators of a motivating racial animus, the complaint cites the administration’s acknowledgement that the policy will have a disparate impact on families of color, President Donald Trump’s own racist statements, and his administration’s other racially-biased policies.

“Donald Trump pushed to execute innocent Black men wrongly accused of murder. He called the white supremacists in Charlottesville ‘very fine people.’ He slurred Black immigrants from Haiti and Nigeria. And he froze or cancelled protected status for immigrants from majority-Black countries. Donald Trump’s words and his actions have consistently targeted Black families,” said Amaha Kassa, founder and executive director of African Communities Together. “When Ken Cuccinelli, the man who signed this regulation, goes on the radio and says ‘not everyone has the right to be an American,’ Black families know exactly who he’s talking about.”

“This rule change is a direct attack on communities of color and their families, and furthers this administration’s desire to make this country work primarily for the wealthy and white. Our immigration system cannot be based on the racial animosities of this administration, or whether or not people are wealthy,” said Antionette Dozier, senior attorney at the Western Center on Law and Poverty.

“This expansion of the rule is part and parcel of the administration’s crusade to instill fear in immigrant communities of color,” said Laboni Hoq, litigation director at Asian Americans Advancing Justice – Los Angeles (Advancing Justice – LA). “By including criteria such as English language proficiency as a negative factor for obtaining permanent residency, the administration is telling immigrants that they are not welcome here. This is unacceptable. Xenophobia has no place in our country, let alone our laws.”

Plaintiffs also assert that the regulation violates the Administrative Procedure Act because it is contrary to law and arbitrary and capricious. The complaint also argues that the regulation is invalid because the official who approved its publication, Kenneth T. Cuccinelli, was appointed in violation of the Constitution’s Appointments Clause and the Federal Vacancies Reform Act.

More than 260,000 public comments were submitted on the draft regulation last fall, the vast majority in opposition. The regulation targets programs that serve whole families — Medicaid, the Supplemental Nutrition Assistance Program, and Section 8 housing assistance — meaning its impact will extend well beyond immigrants directly affected. As a result, experts warn, the regulation will result in increases in hunger, unmet health and housing needs, and poverty. Because affected immigrants are overwhelmingly immigrants of color, the rule is also expected to widen racial disparities. Independent analysts estimate that the regulation threatens millions of people. A significant portion of those threatened by the regulation were born in the U.S., and nearly a third of those are children.

“This rule is a scare tactic designed to create fear and confusion in immigrant communities. The devastating effects will reach even further than the text of the rule itself, as immigrants and their families forgo vital food, housing, and health care services,” said Jane Perkins, legal director at the National Health Law Program.

La Clínica de la Raza and other plaintiffs are health care providers and other nonprofit organizations that seek to protect access to health care, nutrition, housing, and other government benefits for immigrants of color, regardless of their immigration status or financial means. The complaint asserts that the public charge regulation threatens their missions and the communities they serve.

“If the changes made to public charge are implemented, this will cause irrevocable damage to our communities. Deterring anyone from seeking public services that help them survive and support their families is inhumane,” said Carmela Castellano-Garcia, president and CEO of the California Primary Care Association. “We have an obligation to our patients and our communities to protect the rights of everyone, regardless of immigration status, which is why we are suing to stop the implementation of this rule.”

“The Trump administration has deliberately designed this policy to target families of color, which is part of its overall blueprint to change the face of what we look like as a nation and who is considered worthy of being an American. It threatens immigrants of color with exclusion and Americans of color with deprivation or family separation. And it aims to deny working-class immigrants of color the ability to thrive in the land of opportunity,” said Marielena Hincapié, executive director of the National Immigration Law Center. “We will not stand for it. We’re fighting back against this racist policy, and we’re going to win the fight to protect immigrant families.”

A recording the conference call regarding this filing is available at https://www.nilc.org/wp-content/uploads/2019/08/public-charge-lawsuit-2019-08-16.mp3.

CONTACT

National Immigration Law Center: Hayley Burgess, 202-384-1279, media@nilc.org

Western Center on Law & Poverty: Courtney McKinney, 214-395-2755, cmckinney@wclp.org

Asian Americans Advancing Justice – Los Angeles: Alison Vu, avu@advancingjustice-la.org

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Western Center statement on Trump Administration’s Public Charge Rule

The Trump administration has announced a new rule on the issue of Public Charge; it is a blatant attempt to bar immigrants of color who are not wealthy from accessing pathways to lawful permanent residence, like obtaining a visa or green card.

Since our country’s inception, people from all over the world have come to the U.S. in search of better opportunity – including the Trump family. Historically, Public Charge has been weaponized against various immigrant groups to feed one of the most harmful American habits, which is to stoke an “us vs. them” mentality, rather than to harness our diversity to build stronger communities, and a stronger country.

The rhetoric and actions of this administration are wreaking havoc, posing physical and psychological threats to communities across the country. The publication of this rule further asserts the racist ideology that says this country should be accessible only to white, wealthy people.

To be clear: this is an attack on communities of color, and we will not stand for it.

As we laid out in our December comments opposing the rule, this move is not only harmful in the short run, it will also have detrimental long-term effects for individuals and entire communities, and will drive people “into the shadows, dramatically decrease public health and well-being, and destabilize families.” Additionally, “Western Center has never supported the concept of public charge due to its history in racial discrimination and because it exacerbates racial disparities, its devaluation of human dignity particularly of those who are aged or disabled, and its blatant bias against low-income people.”

By implementing this new, radical version of the Public Charge rule, the Trump administration is continuing its destructive path to harm not only immigrant families, but also the communities they are an integral part of. In a state like California, where immigrants make up over a quarter of the population, this rule all but ensures a weaker future, which is why we will move forward in court to stop its implementation.

At this point, it is beyond frustrating that we have to keep playing defense to such harmful, illegal actions by the Trump administration when we as a nation face so many existential challenges that require collective, focused action. The administration’s fixation on racist, classist, and divisive policies takes all of our attention away from what should be the united goal of building a healthier country for everyone who lives here. Since this administration is uninterested in real leadership that could actually “Make America Great,” we are proud to work with community leaders, state leaders, and in the courts to defend our vision for what this country can and should be.

NOTE: The final rule is not yet in effect. It will become effective this October, unless litigation succeeds in halting it. For more information, you can:

‘Put in a corner,’ El Cerrito scraps just-cause eviction law

The 25,000-person town of El Cerrito was the latest target for a deep-pocket California landlord interest group, which shelled out more than $30,000 to kill a just-cause for eviction ordinance that would have affected a little more than 100 landlords.

…Sasha Harnden, a policy advocate for Sacramento-based anti-poverty group the Western Center on Law and Poverty, said in an interview that the California Apartment Association is one of the top two most powerful groups in the state representing landlord interests, along with the California Association of Realtors.

“These landlord interests have so much power over our elected representatives,” Harnden said.

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How LA can make an immediate impact on homelessness

In this op-ed: Western Center’s Executive Director, Paul Tepper, explains how California counties can get thousands of people housed in the immediate future: increase General Relief/ Assistance for adults in poverty.

In L.A. County, the amount hasn’t increased since the 80’s. It’s $221/ month.

 

 

Anya Lawler appointed to Governor Newsom’s homelessness task force

We are proud to report that Western Center housing advocate Anya Lawler will be a part of Governor Gavin Newsom’s new homelessness task force. The group will “advise the Administration on solutions to address the state’s homelessness epidemic. Once convened, these leaders will join Sacramento Mayor Darrell Steinberg and Los Angeles County Supervisor Mark Ridley-Thomas in meetings across the state to assist local governments in crafting their regional strategies to address homelessness, with a particular focus on homelessness prevention and early intervention.”

Anya has been a housing policy advocate on behalf of low-income Californians for decades — her experience and priorities will be invaluable in the administration’s pursuit to end California’s homelessness crisis.

Read the Governor’s press release here.