It's Not "Anti-DEI" It's Pro-Discrimination & Segregation

While it is hard to use the word “genius” to describe anything the Trump Administration or its allies have done, Bouie nails it here. The Administration’s “anti-DEI” strategy takes a term that had often been used to describe a relatively narrow set of human resource and contracting policies, especially in the private sector, which have received mixed reviews across the ideological spectrum. Progressives have frequently viewed DEI policies at large corporations very skeptically, often as public relations window dressing, especially in the wake of Black Lives Matter activism and the George Floyd murder. Conservatives and MAGA types have often viewed DEI as some sort of anti-white discrimination that supposedly led to less-qualified nonwhite workers or firms obtaining jobs or contracts that whites deserved to receive.

In recent years, however, MAGA and their allies have expanded “DEI” to mean a much broader set of policies that stretch far beyond employment or contracting practices to capture almost any sort of antidiscrimination or pro-diversity effort, including, and especially, most federal civil rights laws and policies, some of which date back to the civil rights era. The sociologist Victor Ray may have put it most succinctly in this post on Bluesky:

The Administration is following a well-trod playbook of using fuzzy terms to build support, or condemnation, for a broad set of activities or policies. The planning scholar Ann Markusen used the word "fuzzy" to describe terminology that “possesses two or more alternate meanings” so that different parts of an audience are led to believe that the author is talking about the same phenomenon when they in fact are not. Politicians and others often use such rhetorical fuzziness to build broader coalitions for or against something. This is what the Administration has done with DEI. They have grouped a large set of policies and initiatives, which are much broader than the term previously covered, and painted them with a term that has garnered a negative connotation for many. The Administration has not only reinforced the term DEI as a pejorative for a sizable portion of the country, but it has also pushed half a centuries’ worth of civil rights and antidiscrimination policy under their DEI umbrella.

My focus here is on the rollbacks of, and attacks on, policies meant to address housing discrimination and segregation, often referred to broadly as “fair housing policy.”  My intent is not to provide an exhaustive list. After all, this is just a newsletter, and the Administration’s daily onslaught over the last 100+ days would ensure that I would miss some important attacks. But it is important to understand how fundamental and sweeping this attack has been so far. And given the severity and breadth of this effort, merely trying to “work around” or “adjust to” this onslaught is not enough. Housers and civil rights advocates need to fight back – as many are – and formulate responses, including in the state and local arenas, to continue to fight against housing discrimination and for fair housing.

Here are just some of the rollbacks and attacks that have already occurred:

• During his first day as HUD secretary, Scott Turner cited Trump’s anti-DEI executive order in rolling back a 2016 rule providing trans individuals with full access to HUD-funded homeless programs.

• HUD is reducing the staff of the Office of Fair Housing Enforcement (FHEO), the key federal unit that takes complaints and enforces the Fair Housing Act, by approximately 75 percent.

• HUD has moved backwards more than 30 years on the Affirmatively Furthering Fair Housing (AFFH) portion of the 1968 Fair Housing Act. AFFH is the part of the Act in which state and local governments are expected to take steps to remove barriers to affordable and fair housing in their communities such as exclusionary zoning or other discriminatory policies. In early April, HUD proposed an interim final AFFH rule that would reverse AFFH policy even more than occurred during Trump’s first term, in which HUD rescinded Obama AFFH regulations that had strengthened the previously weak “Analysis of Impediments” regime.  Now, the administration is proposing to gut even the minimalist Analysis of Impediments requirement and simply require a “general commitment that grantees will take active steps to promote fair housing,” whatever that might mean.

• In February, DOGE and HUD illegally impounded the funding for 78 contracts to fair housing nonprofit organizations made under the long-established Fair Housing Initiatives Program (FHIP), a vehicle for enforcing the Fair Housing Act. Fair housing organizations use these funds to do things like conduct field audits of real estate agents, landlords, and mortgage lenders, which are critical to identifying active discrimination in housing markets. Without such activities, the chance of getting caught decreases, and market actors are more likely to engage in discriminatory behavior. In late March, in response to a federal lawsuit by fair housing organizations, a federal court issued a temporary restraining order against the termination of the contracts.

•  Another area of attack, related to the Administration’s overall assault on both documented and undocumented immigrants, is the effort to cleanse federal housing programs of assistance to undocumented immigrants, including the identification and likely breaking-up of mixed-status households, in which only some members of the household are undocumented. In March, HUD announced a memorandum of understanding with the Department of Homeland Security (DHS) to share data so that HUD funds are “not used to harbor or benefit illegal aliens.”  Housing authorities and others are concerned that HUD may share date with ICE, which could then come into assisted housing complexes seeking undocumented residents. In mid-April, a HUD spokesperson told the Washington Post that “there are tens of thousands of ‘ineligible’ individuals in HUD housing, which more than likely translates to illegal aliens.”

• The Administration is also working to weaken housing antidiscrimination law by halting investigations or reversing already executed settlements in fair housing or fair lending enforcement cases, sending a clear message that the housing discrimination cops are off the beat. The Consumer Financial Protection Bureau (CFPB), under Russell Vought, recently alarmed fair lending advocates by not only seeking to vacate an already settled case against a mortgage lender, but also seeking to repay the lender, Townstone Mortgage, the $105,000 fine that the CFPB had imposed for discriminating against Black borrowers. The CFPB’s press release, which reads like a right-wing high-school student’s anti-DEI screed naming “radical DEI proponents like Robin DiAngelo and Ibrahim X Kendi,” argued that the investigation used analysis “‘drawn out of hat’ by a computer model run by DEI-driven CFPB bureaucrats.” The fact that the Administration has attempted to reduce its 1,700 person workforce to just 200 and has explicitly said that it would end data-based analyses to identify likely targets for discrimination investigations is more than concerning.

• Meanwhile, HUD recently withdrew two high-profile Texas housing discrimination cases that it had referred to the Department of Justice for litigation. In one, HUD found that a Texas state agency had steered disaster relief monies away from Houston and nearby nonwhite communities. In the other, it found that a Dallas-area homeowners association had worked to eliminate the ability of renters to occupy properties in the neighborhood with clearly documented racist motivations. Biden’s HUD referred both cases to the Department of Justice before January 20, but they were later withdrawn. These actions are all consistent with an order to freeze civil rights cases at the Justice Department.

• Huge players in the housing market that many do not pay much attention to are the government-sponsored enterprises (GSEs) Fannie Mae and Freddie Mac. Bill Pulte, the new director of the GSE regulator, the Federal Housing Finance Agency, began his tenure by loudly proclaiming that “DEI is Dead” at Fannie and Freddie.  This no doubt signaled a broader retrenchment of programs and policies that promote fair lending in the mortgage market. Pulte has said that he is ending special purpose credit programs (SPCPs) at the GSEs that allow lenders and nonprofits to offer fairly-priced credit to classes of borrowers that might otherwise be denied such financing. Pulte has also rescinded 2024 requirements that seek to curb unfair and deceptive practices in loans backed by the GSEs and ended a set of tenant protections for residents of apartment buildings financed by the GSEs. In the longer run, there are signs that Pulte will push for the full privatization of Fannie and Freddie, which would disproportionately increase the costs of mortgages for lower-wealth homebuyers and homeowners, many of whom are nonwhite, and allow for the resurgence of predatory and high-risk home loans, especially in the absence of a strong CFPB.

Again, this list is not complete. For example, it does not include the rescission of the 2023 revisions to the Community Reinvestment Act regulations. It also does not include the interruptions of – or uncertainties around - funding to nonprofit housing organizations, public housing authorities, or Section 8 landlords, or other attacks on affordable housing and community development, such as those against HUD Section 4 technical assistance providers or concerns over NeighborWorks funding. All of these have additional implications for antidiscrimination, racial equity, and fair housing efforts.

Responding to the Attacks on Antidiscrimination and Fair Housing Policies

Before I wear out my welcome here, I want to mention at least a few ways that housing organizations and state and local governments are – or might – push back. In the specific examples described above, there are clear examples of resistance. The National Fair Housing Alliance and its members are fighting HUD over the cancellation of the FHIP contracts, for example. Many Democratic members of congress are shining a light on these activities and pushing for action to reverse them. But congressional action, while critical, has limited power given today’s political realities. Litigation against the Trump Administration is also critical given the numerous instances in which illegal impoundments or other instances of executive overreach are involved.

At the same time, it is important for state and local governments to consider standing up their own laws and capacity to step in where the federal government has clearly embraced policies endorsing discrimination, segregation, and, as Victor Ray says, white supremacy. Many states, and some cities, have had, for a long time, agencies responsible for civil rights and fair housing issues. The time is now to reexamine those organizations and accompanying statutes to beef them up as needed and provide them with the resources they need in this challenging new era. Or to push for more philanthropic funding to local fair housing organizations. In some cases, new agencies and new statutes may be needed. For example, advocates in Illinois are pushing for a state-level CFPB, and California advocates are pushing for a state-level Community Reinvestment Act.

When the first Trump administration ended the implementation of the Obama-era AFFH rules, several cities (e.g., Philadelphia, Boston, Chicago, New Orleans) and the State of California went forward with adopting their own AFFH policies and plans. Hopefully, such approaches will expand to more cities and states.

Clearly, while a great deal of legal resources is needed to fight all sorts of illegal actions by the Trump Administration, there is also a need for a parallel effort to support more fair housing litigation by nonprofit law firms (perhaps in partnership with private firms). At this point, expecting the traditional HUD-to-DOJ litigation mechanism to work for the benefit of anything but an “anti-DEI” segregationist agenda is naïve. Of course, state attorneys general can play a major role here as well.

There are people and organizations already working on efforts like these and other types of responses to fight back against this concerted federal effort to roll back the housing equity clock. I look forward to learning about more of these efforts in the months to come. (And please feel to reach out to me about anything you know about.)

I’ll simply conclude with an excerpt from same Jamelle Bouie column that I began with: