Deliberative democracy, rulemaking, and social equity : the case of the affirmatively furthering fair housing final rule

Material Information

Deliberative democracy, rulemaking, and social equity : the case of the affirmatively furthering fair housing final rule
Trochmann, Maren B.
Place of Publication:
Denver, CO
University of Colorado Denver
Publication Date:

Thesis/Dissertation Information

Doctorate ( Doctor of Philosophy)
Degree Grantor:
University of Colorado Denver
Degree Divisions:
School of Public Affairs, CU Denver
Degree Disciplines:
Public Affairs
Committee Chair:
Guy, Mary E.
Committee Members:
Crow, Deserai
Ronquillo, John
Newbold, Stephanie


This research examines how redistributive agencies balance concerns of social equity and citizen engagement in rulemaking in contentious policy arenas. Through the process of rulemaking, bureaucratic agencies translate legislative intent into executive action and engage citizens to shape policy outcomes. Rulemaking fills in the how of legislation, guides street-level bureaucratic action, and informs citizens’ perceptions of government. Social equity has long been considered a pillar of public administration, and agency discretion through rulemaking allows for pursuit of those values. Federal agencies may affirmatively enhance equity and address disparate outcomes for marginalized or disadvantaged groups through the rulemaking process. Theories of deliberative democracy provide a basis to examine how rulemaking impacts procedural and substantive equity. This study examines the following research questions: How do bureaucratic agencies informally and formally address concerns of equity in the rulemaking process? To what extent do those processes lead to substantive social equity outcomes? The study proposes that both informal pre-draft processes and formal rulemaking procedures may facilitate the exploration of issues, accommodate diverse interests and enhance social equity. To examine the propositions, the extended case study of the Affirmatively Furthering Fair Housing (AFFH) Proposed and Final Rule is examined in two phases: (1) qualitative data analysis of publicly available data including comments, agency responses, and the Proposed and Final Rule, and (2) interviews with public officials involved in both formal and informal rulemaking. Results demonstrate that the public participates irregularly in formal rulemaking processes, asserting arguments for support or opposition along three dimensions: (1) mission-based support versus opposition on the grounds of local control or constitutional limitations; (2) resources versus costs; and (3) arguments for or against maintaining the status quo. The informal processes, including internal agency dynamics and political will, play a powerful role in influencing outcomes for substantive social equity. As redistributive agencies seek to affirmatively enhance equity in contentious policy arenas such as fair housing, bureaucrats must address stakeholder concerns surrounding the efficiency and effectiveness of proposed regulatory changes to garner public support. This study provides a foundation for future research to explore these propositions and findings in other policy deliberation involving social equity and redistributive agencies and other forms of rulemaking.

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University of Colorado Denver
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Auraria Library
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Copyright Maren B. Trochmann. Permission granted to University of Colorado Denver to digitize and display this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.


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DELIBERATIVE DEMOCRACY, RULEMAKING, A ND SOCIAL EQUITY: THE CASE O F T HE AFFIRMATIVELY FURTHERING FAIR HOUSING FINAL RULE by MAREN B. TROCHMANN B.S. Georgetown University, 2009 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment Of the requirements for the degree of Doctor of Philos o phy Public Affairs Program 201 9


ii The thesis for the Doctor of Philosophy degree by Maren B. Trochmann h as been approved for the School of Public Affairs b y Mary E. Guy, Chair Deserai Crow John Ronquillo Stephanie Newbold Date: May 18, 201 9


iii Trochmann, Maren B. ( Ph . D . , Public Affairs Program ) Deliberative Democracy, Rulemaking, And Social Equity: The Case of the Affirmatively Furthering Fair Housing Final Rule Thesis directed by Professor Mary E. Guy ABSTRACT This research examines how redistributive agencies balance concerns of social equity and citizen engagement in rulemaking in contentious policy arenas. Through the process of rulemaking, bureaucratic agencies translate legislative intent into executive action and engage citizens to shape policy outcomes. Rulemaking fills in the how of legi slation, guides street level bureaucrat ic been considered a pillar of public administration, and agency discretion through rulemaking allows for pursuit of those values. Federa l agencies may affirmatively enhance equity and address disparate outcomes for marginalized or disadvantaged groups through the rulemaking process. Theories of deliberative democracy provide a basis to examine how rulemaking impacts procedural and substant ive equity. This study examines the following research questions: How do bureaucratic agencies informally and formally address concerns of equity in the rulemaking process? To what extent do those processes lead to substantive social equity outcomes? The s tudy proposes that both informal pre draft processes and formal rulemaking procedures may facilitate the exploration of issues, accommodate diverse interests and enhance social equity. To examine the propositions, the extended case study of the Affirmatively Furthering Fair Housing (AFFH) Proposed and Final Rule is examined in two phases: (1) qualitative data analysis of publicly available data including commen ts, agency responses, and the Proposed and Final Rule, and (2) interviews with public officials involved in both formal and informal rulemaking. Results


iv demonstrate that the public participates irregularly in formal rulemaking processes, asserting argument s for support or opposition along three dimensions : (1) mission based support versus opposition on the grounds of local control or constitutional limitations; (2) resources versus costs; and (3) arguments for or against maintaining the status quo. T he inf ormal processes, including internal agency dynamics and political will, play a powerful role in influencing outcomes for substantive social equity. As redistributive agencies seek to affirmatively enhance equity in contentious policy arenas such as fair ho using, bureaucrats must address stakeholder concerns surrounding the efficiency and effectiveness of proposed regulatory changes to garner public support. This study provides a foundation for future research to explore these propositions and findings in ot her policy deliberation involving social equity and redistributive agencies and other forms of rulemaking . The form and content of this abstract are approved. I recommend its publication. Approved: Mary E. Guy


v This work is dedicated to the countless people who serve marginalized communities , whether through policymaking, advocacy, or program administration . For those who bravely initiated the struggle for fair housing, equal opportunity, and more just and inclusive commu nities, despite the violence and threats they endured, and for all those who continue that tradition of social justice through daily acts of public service.


vi ACKNOWLEDGMENTS I want to express my deepest gratitude to my mentor and advisor, Dr. Mary Guy, who has always encouraged me to let my curiosity and interests drive my research. Her passion for the field and public service has inspired me. Her consistent support and willingn ess to share her knowledge and wisdom have guided me throughout th is dissertation research and th e PhD program. Thank you to all of m y committee members , who have been responsive, thoughtful, and engaged throughout the process. Dr. Deserai Crow has challe nged me to be more rigorous and transparent in my research design. Dr. Stephanie Newbold has shown me how to think big about my research and its implications for the study of the historical foundations of the administrative state. Dr. John Ronquillo has be en a consistent mentor, offering both research and professional advice along the way. I would also like to acknowledge and thank the public servants who participated in th is research . They willingly and openly shared their time and thoughtful insight thro ugh telephone interviews . Their commitment to public service and their achievements in the field are inspiring . Finally, I would like to express my gratitude for the support my professional and personal network have provided throughout this dissertation r esearch and my PhD endeavor. My boss, Janice, has given me the support and flexibility to achieve this degree, while balancing my full time professional commitments. My partner, Dave ; my parents, Dale and Lisa ; my sister , Raime ; my PhD cohort , Annie, Ida, and Sam; a nd my dear friend s, Emma, Sam, Nancy, and so many others; have p rovided endless patience, encouragement, and support.


vii TABLE OF CONTENTS CHAPTER I . Rulemakin g and Social Equity ................................ ................................ ................................ .... 1 Rulemaking as a Critical Function of Public Administration ................................ ..................... 2 Equity as a Pillar and Competing Value in Public Administration ................................ ........... 13 Fair Housing as a Case Of Rulemaking And Equity ................................ ................................ . 17 Research Questions ................................ ................................ ................................ ................... 25 II . Theoretical Premises ................................ ................................ ................................ ................ 28 Administrative Law, Bureaucratic Discretion, and Deliberative Democracy ........................... 28 Theories of Rulemaking and Empirical Findings ................................ ................................ ..... 38 Theoretical Background and Key Assumptions ................................ ................................ .... 38 The Rulemaking Process ................................ ................................ ................................ ....... 44 Rulemaking and Equity ................................ ................................ ................................ ............. 50 Study Context and Theoretical Contribution ................................ ................................ ............ 54 Study Propo sitions ................................ ................................ ................................ .................... 58 II I . Research Design ................................ ................................ ................................ ...................... 61 Phase I ................................ ................................ ................................ ................................ ....... 63 Phase II ................................ ................................ ................................ ................................ ...... 67 Analysis ................................ ................................ ................................ ................................ ..... 69 IV . Results ................................ ................................ ................................ ................................ ..... 74 Formal Rulemaking: Who Participates ................................ ................................ ..................... 74 Formal Rulemaking: How Does the Public Participate ................................ ............................ 80 Rulemaking Results: The Proposed And Final Rules ................................ ............................... 93


viii Interview Results ................................ ................................ ................................ ..................... 100 Analysis ................................ ................................ ................................ ................................ ... 117 V. Discussion and Conclusion ................................ ................................ ................................ .... 124 Impacts for Theory and Practice ................................ ................................ ............................. 130 Limitations ................................ ................................ ................................ .............................. 138 Future Research ................................ ................................ ................................ ....................... 140 Conclusion ................................ ................................ ................................ ............................... 142 REFERENCES ................................ ................................ ................................ ........................... 144 APPENDIX ................................ ................................ ................................ ................................ . 158 A : S ample of Existing Rulemaking Studies b y Agency Type ... ... 1 5 8 B: E xcel Analysis Tool Final Rule .. 1 60 C: Interview Consent a 61 D: Semi . ..163 E: Guidance f or Interview Transcription And Analysis


ix LIST O F TABLES TABLE 1.1. Timeline of Major Fair Housing Actions 4 2.1 69 4.1 Data Sourc 2 4 7 4.4 Comments of Support and Opposition by Sub 69 4.5 Comment Coding and Pub 4.6 4.7 4.8 4.9 Overall Rulema




xi ABBREVIATIONS AFFH Affirmatively Further Fair Housing AFH Assessment of Fair Housing AI Analysis of Impediments APA Administrative Procedure Act of 1947 A/S Assistant Secretary CPD Office of Community Planning and Development DAS Deputy Assistant Secretary FHEO Office of Fair Housing and Equal Opportunity FR Federal Register GAO Government Accountability Office HUD U.S. Department of Housing and Urban Development OGC Office of the General Counsel OIG Office of the Inspector General OIRA Office of Information and Regulatory Affairs OMB Office of Management and Budget OS H C Office of Sustainable Housing and C ommunities PD& R Office of Policy Development and Research PHA Public Housing Authority PIH Office of Public and Indian Housing PRA Paperwork Reduction Act RECAP Racially and/or Ethnically Concentrated Area of Poverty WH White House


1 CHAPTER I RULEMAKING AND SOCIAL EQUITY Administrative rulemaking is the process of translating legislative intent into execut ive action. Through this process , agencies engage citizens to shape policy, filling in the how of legislation and to guide street policy outcomes. The history of bureaucratic rulemaking is not straightforward or without conflict. Political values impact how executive branch agencies, the media, citizens , and the legislative and judicial branches of government frame rulemaking. R ulemaking is contentious: on one hand, viewed as a symbol of costly and unconstrai ned executive branch overreach (see Gattuso & Katz, 2016) , whereas others understand it as an essential and constitutional tool to engage with stakeholders and enact the democratically elected P he electorate. P residential administrations often promise to address the perception of unfairness or help disadvantaged or marginalized groups through more equitable policies. Rulemaking is a key tool at their disposal, which also ensures another venue for public participation. Federal agencies have discretion t o enhanc e equity and address disparate outcomes for marginalized or disadvantaged groups affirmatively through the rulemaking process . Social e quity has been considered a pillar of public administration for decades , and agency discretion through rulemaking allows for the pursuit of those values. Theories of deliberative democracy and bureaucratic discretion provide a basis to examine how recent policy changes enacted through the rulemaking process impact social equity. Wh ile many scholars examine rulemaking in the context of public participation and bureaucratic discretion, little research has delved into the value context in which rulemaking occurs. To this end, this study probes the link between rulemaking and social equ ity .


2 This chapter first examines how rulemaking has evolved in American administrative law and is shaped by presidential administrations. Then, the chapter provides a brief history of social equity as a pillar and competing value within public administration. Finally, the history of Federal fair housing policy and the ffirmatively f urther f air h ousing is outlined, as this provides a context to examine the nexus of social equity and rulemaking. Rulemaking a s a Critical Function o f Public Administratio n To achieve the missions of their agencies and realize quantifiable outcomes with which they are tasked, public administrators have several policy tools at their disposal. A primary tool of American bureaucratic agencies is that of administrative law, which encompasses executive orders, regulatory authority, and rulemaking ( Cooper, 1983 ; Kerwin & Furlong, 1994; Rosenbloom, 2003; West, 2005) . Administrative law prescribes, directs, and constrains the ways in which agencies can achieve their goals. Rulemaking is lawmaking and pol icymaking authority. C ongress omits many key details in its drafting and passage of legislation , and lawmakers rely on the technical and practical expertise of public administrators to set standards and develop processes (West, 2005). The legislature entru sts Federal agencies to understand the best structure of programs and policies for their key constituents . Bureaucratic agencies are tasked with determining guidelines from their communication with citizens and from their firsthand understanding of the intricacies of policies in practice ( West, 2005 ) . To understand the extent to which rulemaking plays a role in the responsibility , it is first necessary to understand the context from which rulemaking ar ose.


3 A fter the growth of the bureaucracy and the scope of the Federal government in the New became a focal point ( Newbold & Terry, 2006; Newbold & Rosenbloom, 2007 ) . President Franklin Roosevelt created Committee o n Administrative Management (PCAM) in 1936 to understand executive branch growth better and to propose recommendations for improved coordination and management (Karl, 1963; Polenberg, 1966; Schlesinger, 1978) . Perhaps the most well known assertion that the P resident was manager in chief and needed managerial support and significant reorganization of the executive branch to govern effectively. The inal deliverable , also known as the Brownlow Report for its committee chairperson Louis Brownlow , was comprised of five accompanying report s , the last of which focused on the function of rulemaking within the executive branch (Newbold & Terry, 2006). Hart and Witte (1937) , the authors of the fifth report, declared that rulemaking power and delegation to administrators was not a new phenomenon, rather it dates founding . This report emphasized rulemakings increased role in their time as social policies and reach and role expanded. They asserted: T his trend is not to be deplored. Long experience teaches the unmistakable lesson that, in a complex and rapidly changing modern economy, delegated rule making [sic] is an indispensable feature of government regula upon as a necessary evil. It is rather to be regarded as a normal and, if properly safeguarded, highly desirable development of the American system. For rulemaking is a principal means by which entirely within th e framework of the Constitution as interpreted by the Sup reme Court, the machinery of an eighteenth century Government has been adapted to the requirements of twentieth century governmental problems. (p. 313) Th is report asserted the positive and necessar y aspects of rulemaking, which allowed for a flexible, adaptable, and responsive government.


4 While Hart and Witte (1937) emphasized the historical precedence for rule making, they also asserted rulemaking as an essential function of the Executive branch wi thin our constitutional system that is grounded in the rule of law. The Report continues: The rule of law demands that the basic policies of governmental regulation be embodied in statutes; but it does not demand that Congress freeze into its statutes a mass of details. The ideal statute steers a middle course between the Scylla of attempting to anticipate every possible situation and the Charybdis of expressing no policy except that in an empty formula. It defines in general terms the policy t hat the administrator is to pursue, the objectives that he is to seek, and the limits within which he is to operate. It then authorizes him to translate that policy into more concrete terms before applying it to particular cases. In this vie w the rule maki ng power appears as a means of introducing the rule of l aw at the administrative level. (p. 313) They advocated for the advantages of rulemaking and administrative law, which they believed allowed Congress to focus on its role as a primary forum for natio nal debate and deliberation. T he Report asserts that regulations and rulemaking hold advantages over statutes in that rules enable administra tive fle xibility in changing conditions. Rulemaking allows for the better use of technical information and guidance that the legislator may not understand . Moreover, the ongoing challenge of interpreting the law can only be achieved in the act of applying the law , a duty beyond the scope of the legislature . Within this system, the Executive branch applies the law and t he Judiciary has the role to serve as the final interpreter of that application. Upon asserting the constitutionality of rulemaking, Hart and Witte (1937) go on to make as espoused in The Federalist. These suggestions include: 1. Regularization of the rule making process at the departmental level ; 2. E xtension and improvement of the use of prenatal procedural safeguards designed to provide groups consultation, to include advi sory committees, notice and formal hearings ,


5 publication of draft regulations, informal contacts with affected groups, and progression from voluntary to mandatory standards ; 3. Insurance of adequate postnatal publicity, through continued use of the Federal Re gister and regular distribution and mailing lists to affected parties ; 4. Coordination of Federal rulemaking ; and 5. Prescription of uniform regulations governing the service or institutional operations of the e xec utive b ranch . (p. 314) recommendations were echoed in subsequent report s and survived to be enshrined a decade later in the Administrative Procedure Act (APA). Another of the five reports that was published in the final Brownlow Report was The Problem of Independent Regulatory Commissions by Robert Cushman. Cushman cr itiqued the growing power and contradictory influence of the bureaucracy in policymaking through regulatory bodies ( Cushman, 1937 ; see Newbold & Rosenbloom, 2007 ). Independent regulatory commissions, such as the Interstate Commerce Commission, ert knowledge with judicial li k t he format also afforded substantial access to regulatory Arnold, 2007, p. 1031). Cushman saw these independent regulatory commissions as contrary to the presidential will and t oo far out side the p resident realm of policymaking control . The Brownlow Committee, thus , advocate d for rulemaking to be conducted within executive branch agencies , asserting th at presidential direction was a key aspect guiding rulemaking actions and bureaucratic discretion . T he Committee forecast ed the expanded executive branch power via regulatory and rulemaking


6 authority (Arnold, 2007) , and today both independent commissions a nd Federal agencies play a large role in rulemaking . In 1939 , ee on Administrative Procedures examine d and recommend ed parameters for bureaucratic action and rulemaking . That Committee comprehensive report aptly frames the historical and constitutional import of rulemaking: The administrative process in the Federal Government is not new. On the contrary, it is as ess has enacted statutes, and has resorted to the administrative device in the framing of the statute in the practical effort to meet particular needs. Because the administrative process has developed in this fashion, it invites comprehensive study with a view to coordination and improvement. But for the same reason such study must be carried on with understanding of the deep roots , which the process has in American history , and with recognition of the practical judgments of successive Congresses and Presid ents, and o f the people, which it embodies . (p. 7) Thus, the C ommittee that sought to study and recommend improvements to the rulemaking process also recognized how such functions were a practical necessity. Rulemaking represents the element of the policymaking process that could not be fulfilled solely by the legisl ative branch. Rulemaking can be understood only within the context of historical American values, ethics, and paradoxes . One of these contradictions is the dread of government power and the impossible wish for direct citizen rule and participation in any S tate governance (Morone, 1990). Comprehending this irony , the Administrative Procedures Committee recommended that rulemaking be a function that is responsive to the American citizenry , despite the fact that, un like Congress or the p residency , the bureaucracy does not function through direct representation . Thus, they recommended creating a mechanism for deliberative democracy and a venue through which direct citizen participation might be achieved.


7 cedures distinguished between policymaking in the legislative branch and the rulemaking functions of the executive arm. T he committee succinctly describes a four stage rulemaking process as: (1) investigation of the problem, (2) formulation of ideas, (3) t esting of ideas, and (4) final implementation of ideas (p. 102 ; see also Karl, 1963 ; Polenberg, 1966 ). However, it warns that this process ought to be more iterative and responsive, seeking input and advice from those impacted by these rules. Mechanisms fo r this interaction have always been embodied in the legislative branch through a politically elected C ongress, but no such tools for input and transparency were yet enshrined in executive branch agencies and regulatory commissions. Whereas the legislature intended to be a cross section of society represents the sovereign will of the people , administrative agencies consist of technical experts with discretion and familiarity of a narrow er policy arena. The C ommittee warned that the administra tive from the frequently clashing Thus, its recommendations centered on bringing more citizens and stakeholders into the rulem aking process and increasing transparency. The C ommittee saw unique aspects of administrat ive agencies to be an advantage . B expertise might allow them to solicit more specific feedback, information, and advice than a lawmaker. The Committee recommended each agency be mandated to make an annual report of all its rulemaking activities and assign an official within the agency to carry out such responsibilities. The C ommi ttee report made a democratic argument for incre ased transparency in Administrative agencies exercise a delegated power, for the wide use of which they are responsible to the legislature and the people as a whole and also, in a very real


8 sense, to those upon whom their activity directly bears While abuse of power was one concern, the Committee also recognized a primary imperative for a responsive bureaucracy to enhance deliberation , democratic values, and transparenc y . This would loosen the grips of special interests and provide for another tool of de mocracy . In 19 46 Congress passed the Administrative Procedure Act (APA) into law , following advic e of the Committee, by the 79 th Congress, and is codified at chapter five of the Code of Federal Regulations (5 C.F.R.). Congress took up the recommendations of the Committee along with amidst the expanding executive branch and increased delegation of its policymaking role to administrative agencies (Rosenbloom, 2000). As Rosenbloom (2000) prot ect its coequality, fulfill its legislative and representational roles, and promote institutional These debates led to the passage of several landmark acts, including the Legislative Reorganization Act (LRA), which reorganized commi ttee structures in both the House and Senate to mirror the functions of executive branch agencies more accurately, and the APA. O rthodox public administration scholars sought to separate political considerations from their ideal type bureaucracy which foc used solely on efficiency, economy, and organizational effectiveness . The APA challenged this ideal type organization; w i th the passage of the A PA, Congress vested legislative values into the administration. As Rosenbloom describes: The congressional understanding of 1946 does not embrace a politics administration dichotomy. Rather, it considers agencies almost seamless extensions of the legislature for supplementary legislation through rulemaking and order making (adjudication). Mor eover, because the agencies exercise delegated legislative authority, their processes should embrace the legislative values of representation, parti cipation, and open information. (pp. 2 3)


9 The APA responded to an expanding administrative state and codifie d the role of the executive as another venue for deliberation and democratic debate, much like the legislature. The APA retains its relevance as the primary statute governing federal rulemaking today. Congress expanded it over the year s and it n ow encompas s es the Freedom of Information Act (FOIA) and other supplementary legislation (Rosenbloom, 2000) . The APA governs the process for agency rulemaking and adoption of Federal legislation and policy , considering and enacting many of the recommendations of the Committee . The APA control s rulemaking authority and governs the extent to which such regulatory processes must be publicly available and transparent. Section four (Sec. 4) of the APA states that r ule making must be done through public notice, allowing interested persons and parties to submit written comments for agency consideration . The public, individuals, and organized interests may petition for issuance, amendment, or repeal of a rule (see Rosen bloom, 2003) . While the APA provides a framework for rulemaking, presidential administrations guide rulemaking activity t o align with their political interests, perceived mandates, and ultimate goals. This steering is shaped through political appointees and t hrough executive orders , which clarify rulemaking objectives for executive agencies . Since the 1970s, administrations have been issuing and rescinding executive orders urging their cabin et level agencies to influence or ref rain from influ encing po licy through rulemaking (U.S. Government Archives, n.d .). In 1970, Congress created the Office of Management and Budget (OMB), along with its Office of Information and Regulatory Affairs (OIRA) established under the Regulatory Flexibility Act. P resident Richard Nixon directed that all regulatory initiatives be vetted through the White House, beginning with (p. 1037). Since the advent of stricter


10 rulemaking review under President Nixon, a dministrations have continued to exert stronger influence over agency policy making, rulemaking, and regulatory changes. E xecutive orders have fallen along party lines, with D emo cratic administrations urging a balanced, but active role of administrators and R epublican administrations urging restraint and a narrower focus on efficiency and e conomic cost . President Gerald Ford i ssued Executive Order (E.O.) 11821 i n 1974 in response to rising inflation. E.O. 11821 required that all major rulemaking include a cost analysis and statement of inflationary impact. The Director of the Office of Management and Budget (OMB) was delegated authority to prescribe procedures to evaluate any proposed rule . Every Federal agency and department was directed to determin e significant impacts of any pro posed regulation including costs on consumers, businesses, markets, and Federal , State, or local governments, the effects on productivity of wage earners, the effects on competition, and the effect on supplies of products and services. Executive Order 12044 , un der Democrat ic President Jimmy Carter , expanded E.O. 11821 by directing agencies to simple, clear policies to achieve legislative goals effectively and efficiently, with no S (E.O. 12044 , 1978 ) . The process for regulatory reform and rulemaking was to include , at a minimum, a semiannual agenda of regulat ions via public notice in the Federal R egister , agency head oversight, an opportunity for public participation in the development of the policy including A dvance N otice of P roposed R ulemaking (ANPRM , also known as negotiated rulemaking or reg neg ) , open conferences and public hearings, direct sendin g of notices and proposed regulations to those affected, and direct notification to interested


11 parties. E.O. 12044 imposed additional requirements on significant regulatory changes including 60 days for public comment. Moreover, it dictated that existing r egulations be reviewed periodically to determi ne their efficacy in achieving legislative goals . Presidents have been issuing , rescinding, and amending Executive Orders framing rulemaking for decades. The Executive Order in place und er President Barack Obama (E.O.13536 ) was a reissuance of President Bill Review (76 F.R. 3821, 2011) . The major provisions of E.O. 12866 require d that significant regulatory actio ns be submitted to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) for review (Environmental Protection Agency, 2016). It define d significant actions as: (1) having an annual effect on the economy of $100 million or more or adversely affecting the economy, any sector of the economy, jobs, the environment, public health or safety, or government entities in any way; (2) creating serious inconsistencies or interfering with any actions taken or planned by an agency; (3) materially altering the budgetary impact of entitlements, grants, user fees, or loa n programs as well as rights and obligations of any recipients of such programs; or (4) raising novel legal or policy iss ues arising from legal mandates or t (58 FR 51735, 4 October 1993) . President Obama further expanded this order in 2011 to coordinate activities where possible, consider approaches to reduce the burden of regulation, anticipate costs and benefits of changes, and ensure scientific a nd technological information support ed any proposed regulatory change s (E.O. 13563). Thus, President Obama framed rulemaking as a balance of economic, environmental, citizen, and scientific concerns. Within this directive, concerns of e q uity were addressed through rulemaking, as evidenced by the U.S. Department of Housing and Urban


12 Under the Donald Trump Administration , a regulatory freeze was put into effect via memorandu m on Inauguration Day 2017 directing that no new regulations be sent to the Office of the Federal Register (OFR) until a n agency head is appoint ed , that all regulations sent to OFR but not yet published be immediately withdrawn, and that all regulations published but not yet effective be postponed for at least 60 days (20 Jan 2017, Priebus; 24 Jan 2017, Sandy). The Costs ( E.O. 13771 ) replaces previous rule making and regulatory directives (E.O. 12497 and 13563 ). E.O. 13771 puts a regulatory cap in place and directs agencies to ensure cost management and prudent, financially responsible regulations (82 FR 9339, 30 January 2017) . In a speech to the Conservativ e Political Action Committee (CPAC) in February 2017, former Senior A dvisor Steve Bannon declared that the Trump A dministration aims to Taylor, 23 February 2017 ). E.O. 13771 and accompanying presidential memoranda in , which would eliminate two existing regulations for every new one proposed . The focus on cos t and efficiency, framing rulemaking primarily as burdensome and costly, dates back to the Eisenhower A dministration . However, directive also eschews concerns of impact, efficacy, benefits to society, and use of objective and scientifically verifiable information in rulemaking . The current rulemaking E.O. is more draconian than pr ior Republican administrati guidelines ; it reframes rulemaking as inherently burdensome, negating the historic understanding of administrative law as a positive and necessary tool within the American constitutional democracy. Presidential politics cont inues to influence, curtail, expand, and shape b ureaucratic discretion in rulemaking.


13 The APA and accompanying presidential directives comprise the administrative framework for the rulemaking function. Despite differences in E.O. guidance and the expanding directives to agencies from the legislative branch , agencies have made important policy decisions through rulemaking for decades . U nder the guidance of the Obama Administration and the APA, bureaucratic agencies played a particularly active role in promulgating rules tied to social equity. The promise to dec onstruct the administrative state and E. O. 13771 casts doubt on the role for rulemaking in t he policy process and the aim of advancing social equity . Th e history of rulemaking forms the context in which this study examine s its impact on social equity , along with its costs and benefits to specific segments of society. Equity a s a Pillar a nd Competing Value i n Public Administration Equity has been a competing value within American public administration for decades. Equity is related to, but distinct from, the concept of equality. Whereas equality seeks to ensure sameness in a strict mathematical sense, equity considers di verse needs and historical advantages and disadvantages ( Guy & McCandless , 2012). Equity seeks to advance proactively whatever is fair, right, and just (Nalbandian, 1989), whereas equality seeks to provide all citizens with the same legal rights. T he concept of social equity has evolved into many, often conflicting meanings, but it centers on tenets of fairness, just treatment, and equal and equitable distribution of benefits to society ( Riccucci, 2009, p. 372). One illustrative example of this dif ference is the context of voting rights. While the Fifteenth A mendment allowed for equality by providing all persons the same legal right to vote, the Voting Rights Act (VRA) of 1965 advanced equity by recognizing historic oppression and voter suppression in specific areas of the country. The VRA mandated the Federal government


14 equitable access for all , regardless of race and particularly in states with a history of minority voter suppression . However, illustrating how rare linear progress is when it comes to equity, in 2013 the Supreme Court dramatically limited the scope of the VRA in Shelby v. Holder . This case exemplifies imple equality is more readily accepted than actions designed to compensate for complex causes of inequality initiatives designed to ensure Guy & McCandless, 2012, pp. S5 S6). Equit able outcomes may require a more ac tive government role rather than simple professions of equality for all . If we understand equity as allowing for diverse groups from different historical contexts and constraints to derive equal value from a common good or government program, structural ba rriers must be recognized and proactively r emoved (Eubanks, 2018). This sort of equity often require s intervention that states, agencies, localities, special interests, or individuals find objectionable. E quity has been an underlying philosophical pillar since the founding of the nation, although it was not always recognized as an intellectual pillar of public administration . Philosophical norms of equity, justice, and fairness are rooted in Rousseau, Locke, and Hobbes philosophers w ho influenced the founding fathers ( Guy & McCandless , 2012). The great and he American political system. Despite , or perhaps because of, these contradictory historical roots , public administration scholars focused primarily on managerial question s and prerogatives of economy, efficiency, and effectiveness through the first half of the Twentieth C entury ( Frederickson, 1990). The ease with which scholars and practitioners might nod to the proclamations of the C onstitution contradicts a history of inequality under the law and the reality of persistent


15 inequity. In the late 1960s, p ublic a dministration s cholars began to examine these contradictions and paradoxical histor y . A s racial , social, and economic tensions rose, s cholars looked at e in issues of social equity. At the Minnowbrook I conference in 1968 , social equity emerged in its current conceptual form as a driving force within public administration scholarship ( Frederi ckson, 1980; see Gooden & Portillo, 2010). This was a pivotal moment in public administration as the intellectual history began to merge with the historical, political, and social reality . With President Rights Act of 1964, and the Fair Housing Act of 1968, the field of public administration had a moment in which it reevaluated its relevance and the role of the administrator in fostering key imperatives of social equity (Lowe, 2014) . This new paradigm reco gnized that administrators were not value neutral, but rather made choices between normative core values, including social equity, citizen choice, adm inistrative responsibility, civic participation, and responsiveness (Frederickson, 1980). Scholars sought to better measure equity, including both representational equity and equity of policies and programs. S tandards of equity are complex and layered, including important contextual factors, such as preferences, economics, hierarchy, historical discrimination, perceptions, and democratic decision making (Stone, 1997) . I n 1968, Frederickson proposed equity as a third pillar of public administration, elevating it to equal standing as economy and efficiency, both of which had dominated the field . Frederickson asserts : To say that a service may be well managed and that a service may be efficient and economical still begs the questions: Well managed for whom? Efficient for whom? Economical for whom? We have generally assumed in public administration a convenient oneness with the public. We have not focused our attention or concern to the issue of variations in social and economic con ditions. It is of great convenience, both theoretically and practically, to assume that citizen A is the same as citizen B and that they both


16 receive public services in equal measure. This assumption may be convenient, but it is obviously both illog ical and empirically inaccurate. (1980, p. 37) While it may be efficient and effective to provide equal treatment for all, equ ity goes beyond this p. 105). in social equity, declaring it is just that social and economic inequalities be taken into account such that the le ast advantaged may benefit. However, the primacy of social equity often resulted in a trade off with other values of public administration. The concept of a tradeoff be tween competing pillars of public administration persists for numerous reasons: it represents a normative debate about the purpose and future of public administration and its role in shaping the government . In 2005 the National Academy for Public Administr ation (NAPA, 2005 ). As under a strict governmental performance definition. As part of an overall framework of costs to the community and over a long time period, however, its productivity and assistance in creating a sustainable and healthy community can convince even the sticki A close reading of presidential executive orders on rulemaking demonstrate this tradeoff and these competing priorities in practice. These enduring dilemmas lead scholars and public servants to examine why social equity persist s and how we might achieve accountability for social equit y (Go o den, 2015). Smith (2002) Despite the long standing commitment to fairness as an administrative principle, administrators must be humbled by the realizations that they contributed to the discrepancy and in many places helped to institute inequality in the past by enforcing discrimi natory laws and


17 using their broad discretion to advance exclusionary social more s (p. 14) . As agencies grapple with their role in the creation of inequity, they might also seek solutions to address its persistence . T his is the case for bureaucrats at the U.S. Department of Housing and Urban Development ( HUD ) , an agency implicit in redlining practices and racial discrimination that led to the current shape of neighborhood segregat ion . Fair Housing a s a Case Of Rulemaking And Equity The t wentieth c entury, while marked by increased homeownership, was also marred by blatant discrimination in the housing market resulting in increasing segregation and inequality . Prior to the 1930s, the Federal government was not as involved in housing , and th e use of racially restricted covenants on private property was widesprea d. These contractual agreements prohibited non whites from purchasing, leasing, or occupying homes and land. While the Supreme Court in Buchanan v. Warley (1917) ruled that municipalit ies could not enforce these restricted deeds, it upheld the right of private owners to do so in 1926 ( Corrigan v. Buckley ). The case exemplifies the explicit discriminatory language of restricted covenants: In 1921, thirty white persons, including the plaintiff and the defendant Corrigan, owning twenty five parcels of land, improved by dwelling houses duly recorded, in which they recited that for their mutual benefit and the best interests of the neighborhood comprising these properties, they mutually covenanted and agreed that no part of these properties should ever be used or occupied by, or sold, leased or given to, any person of the negro race or blood; and that this covenant should run with the land and bind their respecti ve heirs and assigns for twenty one years from and after its date. ( Corrigan v. Buckley, 1926 ) After the Supreme Court dismissed the appeal on the basis of the Fifth, Thirteenth, and Fourteenth A mendments, the practice of restricted covenants became a commonplace response to the Great M igration of southern blacks to northern and western U.S. cities. B y 1940, 80 percent of Chicago and Los Angeles had restrictive covenants in place (U.S. Commission on Civil


18 Rights, 1973). This practice created wealth inequities that have reverberated for generations (Coates, 2014 ; Rothstein, 2017 ). In addition to these local policies and individual choices , the Federal government began to play a n active role in housing and rental practices . Direct g overnment involvement with housing began after World War I to provide temporary housing for returning veterans and the working poor struggling after th e Great Depression. Thi s response was intended as a short term solution to dilapidated tene ment housing and urban slums as well as post war unemployment , primarily for white working class families or single men (Stoloff, 2004). The U.S. Housing Act of 1937 was passed as part of New Deal legislation , cementing the Federal role in housing ( National Low Income Housing Coalition [NLIHC], 2016; U.S. Department of Housing and Urban Development, n.d.). Other Federal involvement, such as h omeownership assistance , exacerbated racial segregation and inequities from the 1930s until 1968 . The Federal Housing Administration (FHA) , which formed in 1934 to provide access to homeownership for the general public through mortgage insurance programs, had an overt practice of denying loan underwriting based on race and ethnicity . These practices institutionalization of racism and segregation within the housing industry The Fair Housing Center of Greater Boston, n.d.). Post W orld War II, t he Federal government increased its lending assistance through the FHA migration out of publicly assisted housing into the suburbs (Stoloff, 2004). Northern migration of African Am ericans in the early Twentieth C entury had prompted fear and indignation among whites , resulting in white flight to the suburbs and racially motivat ed violence (Massey & Denton, 1993). The FHA and other mortgage lenders practiced an


19 explicit policy of redlining or denying mortgages in specific neighborhoods based o n noxious elements. Such noxious elements included race/ ethnic ity and even integration or composition in specific neighborhoods (Loewen, 2005). Redlining prompted white owners to sell homes in undes irable areas at very low prices. T hen, through a practice , black home buyers were sold th ese same houses at inflated prices (U.S. Commission on Civil Rights, 1973). B lack homeowners economic disadvantages were compounded by the fact that they were prohibited from obtaining standard loans or FHA mortgage insurance on these home purchases . Thus , g overnment actions and policies , reinforced by private prejudice, left black and minority families, unable to benefit from the credit and loans afforded to white families, behind in public housing and neighborhoods that grew more dilapidated a nd plagued by disinvestment (Stoloff, 2004). The policies of redlining, blockbus ting, and racially restricted covenants led to increased inequity over time. As a response to those redlined neighborhoods and areas of disinvestment, the Federal government enacted program s a nd improve urban infrastructure. These policy responses resulted often low 6) . The Federal government thus supported increasing segregation and, subsequently, intensified urban inequity through its policies of . As events of the early Federal Housing Administration (FHA) and blockbusting demonstrate, public servants could inculcate value laden decisions in to the politicized arena of housing choice . The FHA reinforced policy preferences of white elites, defining and distinguishing among target populat ions for the benefits it provided (Schneider & Ingram, 1993). FHA len ding benefit ted those with political power and positive social standing , while placing


20 burdens and restrictions on those viewed less positively (The Fair Housing Center, n.d.). These policies reinforced discriminatory attitudes and led to increased segregation by race , ethnicity, and income, perpetuating and exacerbating economic and social inequity (Spader et al., 2018) . C ivil rights activists in the 1960s drew attention to this long standing housing segregation, discriminatory renting and lending practic es, as well as the role of the S tate in creating racially and ethnically concentrated areas of poverty. While the Civil Rights Act was passed in 1964, housing was a uniquely contentious issue that was excluded from that final bill. It was not until the assassination of Martin Luther King, Jr. that t he Fair Housing Act, the final pil lar in Civil Rights legislation, came into law ( Rothstein, 2017 ). Many scholars argue that the Fair Housing Act wa and difficult to enforce, as a Denton, 1999; Massey & Denton, 1994; Rothstein, 2017; Sidney 2001 ; Ware, 1993 ). The Fair Housing Act in its statutory form was weak and contained only limited enforcement mechanisms manner affirmatively to further Fair Housing Act , 1968). Th us, th e passage of the Fair Housing Act placed a burden to affirmatively further fair housing, while leaving many details, particularly surrounding enforcement, to be filled in by subsequent agency rulemaking . However, after the passage of the Fair Housing Act, presidential politics stymied further progress or enforcement of that act Charles Lamb (2005) argues that President Nixon believed in the right of localities and suburbs to remain segregated. Nixon refused to force local governments to maintain, allow, or develop low income housing in suburban neighborhoods , le a d ing to increased segregation in the


21 1970s (Lamb, 2005) espoused goals of suburban integration . Public servants at HUD attempted to enshrine portions of the Fair Housing Act related to disparate impact and t he affirmatively furthering of fair housing through rule making. Through rulemaking, HUD could encourage construction of low income housing in areas of opportunity : primarily white suburbs. Former Secretary of HUD George Romney wrote in a confidential mem o that he p lanned to use his power to remak e more integrated urban and suburban housing patterns via the Fair Housing Act . Secretary Romney described sub u rbs as a r cities (Hannah Jones, 2015). This led to conflict with President Nixon, who was which he viewed as unjust as housing segregation (Bouie, 2015) . President Nixon forced Secretary Romney out of his role at HUD after his failed attempt to enact rules that would affirmatively further fair housing and address segregatio n through Federal enforcement. After President Nixon , there were only two occasions in which HUD withheld money from communities for not abiding by the Fa ir Housing Act, despite increasing patterns of segregation over the decades (Hannah Jones, 2015). The extent to which HUD sought to pursue equity and addr ess social injustice s through bureaucratic discretion and administrative law in those intervening years is unclear. However, in addition to presidential politics , which may have thwarted such efforts, HUD also had to contend with mou nting dis trust of the F ederal government . S uspicion of government grew after the 1970s. P rivatization initiatives under President Reagan changed the way public servants d elivered services . Levine (1984) describes this time as


22 , combined with fisca l stress, led the government toward privatization, emphasizing increasing productivity and efficiency, de professionalization of bureaucracies, and devolving service responsibilities (Levine, 1984). Concerns of social equity and nuanced questions of complex public problems were pushed aside in favor of efficient and limited service delivery . This era is best c aptured in book Reinventing Government, which proposed that government should be results oriented and customer driven and should utilize competitive service delivery or contractin g out of governmental services am o ng other recommendations. The view of citizen as customer did not leave space for deliberative democracy or citizen engagement. Moreover, the distrust of government led to limits on rulemaking authority and bureaucratic discretion, similar to the constrain ts enacted presently by the Trump Administration. In the fair housing realm, the results of this shift toward privatization were particularly pernicious. HUD published a study in 2000 on subprime lending by private banks and mortgage companies that found predatory lenders had made homeownership costlier for minority and poor families than for white, middle class families. Despite the fact that redlining and blockbusting were only explicitly practiced prior to 1968, the report found that from 1993 to 1998 subprime loans increased ten fold and were five times more likely in black neighborhoods than white . H igh income black fa milies were twice as likely to end up with a subprime mortgage loan than white families. Through the publication of this report, public servant s at HUD began to shed light on these problems as a first step toward offering solutions. While discriminatory practices could be prosecuted through the Department of Justice ( DOJ ) and were known to HUD, judicial action only occurred on a limited scale after severe economic and social damages had already occurred. As the sub prime lending crisis unfolded,


23 enforce ment remained lax a nd those in power hoped the private market would f airly and fully address such concerns (Duca, 2013) . HUD was limited in its enforcement capabilities because of the weakness of the Fair Housing Act and its li mits on enforcement activities , as enumerated in its regulations . housing had been contentio us and not incorporated in any subsequent rulemaking . That omission was addressed only in recent years. In 2015, the Supreme Court decided 5 4 in favor of upholding disparate impact claims under the Fair Housing Act (Howe, 2015). In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the court determined t hat the Federal government could prosecute l awmakers, landlords, and developers for actions that have a discriminatory effect even if they do not have an overt discriminatory intent (Howe, 2015) . These issues of housing and community equity were determined by the judiciary to fall under the purview of the Fair Housing jurisdiction via rulemaking . HUD responded by seizing on an opportunity to make the Fair Housing Act en forceable . Following the Texas decision , HUD publishe d the Final R ule on Affirmat ively Furthering Fair Housing (AFFH) . In the executive summary of the Federal Register , HUD states, For more than forty years, HUD funding recipients have been obligated by law to reduce barriers to fair housing. Established in the F air Housing Act of 1968, the law directs fair housing and equal opportunity. The final rule on affirmatively furthering fair housing (AFFH) aims to provide all HUD grant ees with clear guidelines and the data that will opportunity to achieve. This rule equip s communities receiving HUD funding to affirmatively advance fair housing , but it al so places reporting and follow up requirements on those communities . The rule clarifies


24 existing fair housing obligations, provides publicly available data on fair housing and access to opportunities through HUD tools and systems. The AFFH seeks a balanced approach by allowing for place based decisions to invest in distressed areas while expanding access to areas of opportunity (U.S. Department of Housin g and Urban Development, 2015). Thus, it recognizes the harm of previous policies of both seg only neighborhoods where minority families were allowed to reside. The Final R ule encourages collaboration and participation by local communities, providing customized tools and allowing for local knowledge and input. Finally, it allows for a phased in approach, providing additional time to prepare Assessment of Fair Housing (AFH) Plans for small grantees , public housing authorities, and regional collaborations. T hroug h rulemaking, HUD administrators injected enforcement mechanisms and clear directives into the Fair Housing Act, which was largely ineffective in its early decades. A timeline of major events in housing discrimination practices and at HUD is included below in Table 1 .1 below. Table 1.1 . Timeline of Major Federal Fair Housing Actions Date Key Event 1937 The passage of the U.S. Housing Act of 1937 1940s 60s Redlining Practices through the Federal Housing Administration (FHA) increases segregation and barriers to access for minority groups. 1964 Passage of the Civil Rights Act* 1965 Department of Housing and Urban Development (HUD) established as an executive branch agency. 1968 Passage of the Fair Housing Act 1970s Increased housing segregation, lax enforcement of the Fair Housing Act 2007 2010 Housing market collapse subprime mortgage lending crisis


25 Table 1.1 c *This did not include or address issues related to housing segregation or discrimination. The AFFH demonstrates how rulemaking can be utilized to promote social equity. However, the formal and informal processes of agency rulemaking, which allowed for deliberative democracy , remain a black box . The informal processes of stakeholder engagement d uring the rule development stages may have had significant impacts on the final outcome and its focus on substantive equity. Formal processes of engagement with the public, as enshrined in the APA, may also have led to equitable treatment of stakeholders, many of whom had competing motives and goals, resulting in equitable substantive outcomes. The processes by which HUD, and other Federal agencies, address concerns of equity in rule development and how those processes might lead to substantive social equit y is the focus of this study. Research Questions To advance a dialogue on the normative questions to what extent should agencies promote equity through rulemaking it is necessary to first examine descriptive questions : How do bureaucra tic agencies informally and formally address concerns of social equity in the rulemaking process? To what extent do those processes of deliberative democracy lead to outcomes that promote substantive social equity? Explorin g these research question s matters both for practice and theory. M any scholars have examined the methodology of rulemaking, which are the how questions that examine the Date Key Event 2014 HUD publishes Proposed Rule on Affirmatively Furthering Fair Housing (AFFH ) and seeks public comment 2015 claims Final Rule on Affirmatively Furthering Fair Housing published 2015 present Subsequent rules r elated to the AFFH, Assessment Tools and instruments or jurisdictions continue to be published in the Federal Register


26 effects and implications of rulemaking as an alternative form of policy implementation ( see West, 2005). However, current theories stop short of explaining the key elements of contextual variance before the formal rulemaking process commences . West (2005) argues, primarily on formal, institutional arrangements, existing work on rulemaking has overlooked the informal process through which the most important decisions are often made. Another limitation This research address es these limitations , enhancing knowledge and theories of rulemaking. A deeper focus on the context in which rulemaking occurs is necessary to understand its role in both the political and bureaucratic contex t. An interest in the promotion of social equity comprises one of the most important elements in the context of rulemaking. Our nation appears at a crossroads for social equity as national and neighborhood level movements such as Black Lives Matter, Occupy Wall Street, and generate ongoing dissent and debate . As the legislative branch seems steeped in inertia and political polarization, the mandates of bureaucratic agencies and the executive branch to add ress such concerns and offer policy solutions continue to evolve. Moreover, those agencies are uniquely positioned to engage citizens and stakeholders in a process of deliberative democracy that may enhance equitable outcomes. This study will offer both t heoretical and applied contributions by examining the context of rulemaking as it impact s equity. The research will probe the process by which the Federal government chooses to focus its policymaking discretion on social equity via informal and formal processes. It will determine the extent to which those processes promote procedural and substantive equity through deliberative democracy . Moreover, it may of fer insights to citizens, advocates, and other stakeholders on how to effectively engage in the rulemaking process. Th e


27 hope is that th is understanding will benefit public administrators as they navigate the complexities of policymaking to effectively , tra nsparently, and justly pursue competing values of public administration .


28 CHAPTER II THEORETICAL PREMISES This chapter explores theories and empirical findings that inform the research questions: How do bureaucratic agencies informally and formally address concerns of social equity in the rulemaking process? To what extent do those processes lead to substantiv e social equity outcomes? First, the chapter reviews scholarship on administrative law, bureaucratic discretion, and deliberative democracy. From this foundation, it examines the theoretical framework for rulemaking and empirical findings regarding the det erminants and effects of agency rulemaking. Propositions are then developed to guide this study and advance the literature. Administrative Law, Bureaucratic Discretion, a nd Deliberative Democracy Public administration scholars began to examine rulemaking in the 1970s and 1980s. Prior to that time, legal scholars of administrative law were the primary source of knowledge and observation (West, 2005; see: Bonfield, 1969; Diver; 1981; Hamilton, 1982; Harter, 1982; Shapiro, 1965; Stewart; 1975). Rosenbloom, O latter half of the twentieth century, public administration scholars were concerned primarily with questions of management. However, legal dimensions of public administration, beginning with the Administra tive Procedure Act (APA), continue to take a more prominent role which scholars must acknowledge and address (Rosenbloom et al., 2010). This legal lens, a tradition that has extended to the present, focuses on the role of bureaucratic agencies in rulemakin g, enforcing, and adjudicating through administrative law ( Cooper, 1983; Rosenbloom, 2000; Kerwin, 2005; see Kagan, 2001; Magill, 2004). Much of this literature focuses on two dimensions: how administrative law is respon sive to actions of the judicial branch, and the potential or actual impact of adjudication on agency choices (Magill, 2004).


29 T he legal scholarship tradition runs parallel to another powerful vein of literature: bureaucratic discretion. Rosenbloom (1983) describes the work of public administrators as being grounded in a separation of powers foundation, where managerial, political, and legal lenses must all be utilized and respected by a public administrator. T radition al c onstitutional scholars in public administration believe that bureaucratic discretion can be grounded in civil servants commitment to their oath of office and publ ic values (Rohr, 1986, 1988, 1998; see also Bertelli & Lynn, 2006) . T his legal obligation guides their discretionary actions and efforts in a constitutional framework and the rule of law (Rosenbloom, 1983 ). B ureaucratic discretion requires public servants to support and defend the Constitution and rule of law through their skill and professional capacities ( Cooper, 1987, 2012; Newbold, 2010; Rohr, 1986, 1988; Rosenbloom, 1983; Terry, 2015; Wamsley, 1990). These arguments raise the moral stature of civil se rvants in ways that are often overlooked by economic theories. Moreover, they demonstrate essential and profound differences b etween public managers and their private sector counterparts. Despite this deep c onstitutional tradition and vast scholarship on bureaucratic discretion, m ost empirical examinations of rulemaking are grounded in rational choice princip le s which treat public servants similar to private sector actors . This literature arose from scholars who sought to frame the political (i.e. non market) arena by applying economic principles and assumptions (Heikkila, 2010). These scholars viewed public servants as rational actors, seeking to maximize their self interest and achieve their own preferences , whether those include personal advancement, security and convenience, power or prestige, policy objectives, the public interest, or budget maximization (see Downs, 1967; Niskanen, 1971; Tullock, 1965). Using these baseline assumptions, principal agent mo dels were developed to explain how bureaucrats might be


30 constrained to ensure responsiveness to a democratically elected legislative branch (McCubbins, Noll, & Weingast, 1987). Elected officials communicate with bureaucratic agents through specific tools, including legislation, budgets and appropriations, political appointees, and other mechanisms. Public choice scholars describe bureaucratic discretion as a dilemma in which bureaucrats hold a strategic advantage through their access to information and pro grammatic knowledge (see Moe, 1985). McCubbins and Schwartz (1984) describe the political oversight as ex post facto , in which elected officials learn of problems in policy implementation through a ith, or harmed by, agency actions. Through this lens, rulemaking and administrative law, when unconstrained, are as a vehicle for potentially dangerous and unconstitutional discretion. In public choice theory , politicians and legislators have an incentiv e to delegate authority to these agencies because it allows them to distance themselves from either controversial or highly technical policy problems (Fiorina, 1982; McCubbins, 1985). Bryner (1987) characterizes this phenomenon: Discretion is a fundamental element of modern administrative theory and is consistent with important norms of pluralism and democracy. It is also consistent with political incentives and serves as an attractive way for legislators to delegate responsibility for difficult decisions t o bureaucrats. Credit can be claimed for legislative action, blame can be deflected when specific efforts clash with politically powerful interests, and constituents can be cultivated by interven ing in unpopular agency actions. (p. 6) Thus, legislators can use bureaucratic discretion as a tool in times of political uncertainty. I t allows them to capitalize on the ir lack of control in the principal agent dilemma, deflecting blame as needed. The pluralism and democratic norms that Bryner (1987) references relate to the constraints of the Administr ative Procedure Act (APA) and its formal procedural controls. The


31 APA provides assurances of maintaining direct political accountability in the bureaucracy (McCubbins, Noll, & Weingast, 1987). Due process requirements ensure that agencies announce their policy making intentions, solicit political information, and gauge interest and (McCubbins, Noll, & Weingast, 1987, p. 2 58). Underlying these benefits of the APA and due process is the assumption that agencies might otherwise undertake actions in secret, mobilize powerful constituencies, and act against the will and intentions of their political principals. Principal agent models assert political principals are constrained in their knowledge and levels of control in this principal agent dilemma, and those models make assumption s about bureaucratic agencies. The agencies and bureaucrats themselves are understood through a bou nded rationality lens in which they have limited attention to devote to an ever increasing multitude of demands and priorities (May, Workman, Jones, 2008 ; see also Simon, 1962 ). Thus, other actors, including industry groups subject to government regulatio n, may compete for agency attention and deploy strategies during rule development and notice and comment period s . These groups and actors might control the agency rulemaking processes to serve their own interests , a theory known as agency capture (see Lowi , 1979) . The extent to which agency discretion and rulemaking processes have allowed for agency capture, , conversely, a participative and procedural safeguard has been hotly debated for decades (see Blomgren Bingham, 2005; Nabatchi, 2010; Schulman et al., 2003). Some scholars argue that the time, resources, and technical expertise necessary to lobby the Federal government effectively for change through rulemaking limits the capability of ordinary citizens and individuals. Others believe that transparency and public deliberation allow for another means to access policymakers via civic


32 engagement. This review now turns to that friction and the deli berative democracy lens , which Many tensions are inherent in the values, goals , and role of the public administrator. In her examination of bureaucratic actions to influence and change policy, Rose (1994) describes this ambiguity : there is a need for accountability and control in our public bureaucracies, while at the same time there is a need for innovation and change. Put another way, ther e is a need in government for career bureaucrats who are policy innovators and risk takers; at the same time there is a need in government for career bureaucrats who are policy sustainers. (p. 461) In the context of rulemaking, a quintessential tool for bureaucratic influence on policy change, this paradox is one of the many schisms public administrators must navigate. The goal of promoting equity adds another layer of complexity to the complicated role of the bureaucrat. They must sustain current policy and daily operations but innovate and address myriad new legislation. Moreover, they must do so within the bounds of the APA and Executive Orders, all while balancing and weighing competing democratic values. Recent scholarship notes that bureaucratic discretion meaningfully impacts transparency and accountability to the public, particularly in regard to administrative procedures and rulemaking (Balla, 2015). Bureaucratic discretion has been operationalized as the size and capacity of an ag ency and the complexity of their policy domain. Balla (2015) finds that as through prolonged notice and comment periods also increases. Relatedly, the more bureauc ratic expertise and capacity exist, the less likely prolonged public engagement would be sought. Bureaucratic discretion is thus inextricably tied to values of accountability and remains an impactful theoretical concept that is still widely studied within public administration scholarship.


33 There is an inherent disconnect between principal agent models and scholars of deliberative democracy, a lens that arose in more recent decades. While rational choice theories and principal agent models are grounded in p olitical science and economics, the theory of deliberative democracy is grounded in public administration scholarship . Moreover, public administration scholars have demonstrated that economic models do not address important considerations of the legal foun dation, constitutional framework, and regime values which guide bureaucratic discretion (Rohr, 1986; Rosenbloom, 1983) . Recent studies of deliberative democracy view rulemaking and administrative procedures as a means through which citizen concerns, divers ity, and additional voices might be added to public policy debates (see Blomgren Deliberative democracy has the potential to address citizenship and democratic deficits through im buing government decision making with discussion and deliberation among informed citizens (Nabatchi, 2010). Deliberative democracy requires reason giving and accessibility to citizens impacted by policy decisions . It results in a binding policy or decision and is a dynamic process that retains options for ongoing dialogue (Gutmann & Thompson, 2004). In its optimal form, deliberative democracy is inclusive of , and sensitive to , a diverse array of values and demographic s and perspectives (Young, 2000). Deliberative democracy may serve to enhance civic engagement and educate participants on matters of civic interest, even resulting in improved governance and overall consensus (Nab atchi, 2010). A drawback to deliberative democracy is its cost in terms of time, resources, and barriers to entry, especially for historically marginalized communities with fewer resources . Dialogue and engagement take time, resources, and money, all of w hich are in limited supply in public agencies and with segments of the citizenry (Irvin & Stansbury, 2004; Rydin & Pennington,


34 2000). Moreover, the type of participation and citizen engagement has implicatio ns for its outcomes and potential (Nabatchi & Lei ghninger, 2015). For example, c onventional participation, the typical format of town halls or public meetings, reinforces power differentials and rarely allow s time for engag ing in dialogue . This result s in feelings of inefficacy, frustration, or polarizat ion. In contrast, there are o ther forms of participation thin and thick that allow for enhanced engagement. Thin participation activates individual s , allowing for expression of opinions, ideas, or concerns, often through online forms, surveys, or other comment mechanisms. Thick participation engages citizens in groups , and allows for dialogue and generation of ideas (Nabatchi & Leighninger, 2015). Whereas thick part icipation is best suited for contentious issues where education around complex issues would be beneficial, rulemaking under the APA and the required notice and comment periods allow for thin participation. This study seeks to explore proc ed ural equity and citizen engagement under this framework to determine how rulemaking processes allow for, or hinder, effective deliberative democracy. Whereas public choice scholars saw the APA as a procedural safeguard to ensure political accountability, the deliberative democracy perspective places primacy on the APA as a means for engagement of t he broader public and citizenry through thin participation . The APA (Rosenbloom, 2000) an d it offer s venues for citizen engagement and legitimizing voices that asserting that administrative agencies should be monitored and overseen by Congress and elected o fficials lest they overreach their constitutional role and legislate policy, Blomgren Bingham et al. (2005) describe these agencies as quasi legislative:


35 Administrative agencies function in certain ways that are analogous to each of the three branches of government. We use the term quasi legislative to identify agency actions that are synoptic, prospective, and general in application and that set standards, guidelines, expectations, or rules and regulations for behavior. Traditional rule making can meet the se (p. 551). T he quasi legislative nature of bureaucratic agencies presents an opportunity for democratic engagement, dialogue, and deliberation. The APA creates what Rosenbloom (2000) calls a legislative centered view of public administration. Th ese processes allow citizens to clarif y thei r own policy inclinations, envision their future com munity, growth, and development, engage in civil discourse, and reach a consensus or compromise on policy proposals (Blomgren Bingham et al., 2005, p. 551). This research is grounded upon the assumption that po licymaking discretion is not the principal agent dilemmas of a rogue bureaucracy; rather, it is a means by which quasi legislative bureaucracies promote equity, representativeness, and responsiveness. Through the APA and rulemaking processes, delibe rative democracy can occur, but it presents its own unique dilemmas associated with the tensions between efficiency , effectiveness, and equity. In their final call for further research and theory development, Blomgren Bingham et al. note the challenge of e quality and representation: To what degree do participants have true equality in terms of knowledge, participation, power, and authority during the processes? What factors affect the decisions of individuals to participate? How does this affect representat ion, diversity, and inclusion? Who loses in these processes? How do these processes affect the discretion, power, and control of administrators an d other public decision makers? (p. 555). These questions guide the examination of rulemaking and social equi ty in this research. The assumption , grounded in a deliberative democratic lens, is: procedural equity is essential to achieve substantive equity that is, equitable outcomes and social equity.


36 S ocial equity revolves around fair, equitable, and just distribution of government services and benefits, which considers historical oppression and inequities (see Guy & McCandless, 2012). The National Academy of Public Administration (NAPA) Panel on Social Equity in Go serving the public directly or by contract, and the fair and equitable distribution of public services, and implementation of public policy, and the commitment t o promote fairness, justice, definition is bifurcated so that procedural equity refers to the managerial practices of institutions serving the public, including bui lt in procedural safeguards such as the APA and rulemaking process. Substantive equity, then, refers to the promotion of fairness, justice, and equity in the formation and implementation of public policy as well as the final distribution of benefits and pu blic goods and services. Additionally, the study takes a bureaucratic centered perspective of governance (see Hill, 1991), examining the process from the perspective of the bureaucracy inter relations and interactions with its external environment and other actors, including its legislative principals. role in the policy process an d governance, bureaucracy has wide discretion and serves a powerful unavoidably the bureaucracy, since power is exercised neither through parliamentary speeches n It follows that bureaucracy grounded in its constitutional duty and faithful to the statutory procedural fairness of the APA may then be a just ruler and necessary component of democracy. In his


37 d the drudgery of rulemaking what may be viewed a serves an essential component of due process for others. A rich body of research on red tape asserts that rules may be ineffective and burdensome either by design or through implementation (Bozeman & Feeney, 2011). However, other s cholars move beyond the concept of red tape to explore how rules function positively for the majority of organizational members, not just upper or middle management (Dehart Davis, 2009) . Coining , Davis (2009) describes h ow rules allow for a seat at the table and perform on multiple organizational and behavioral dimensions. Rules are necessary and ubiquitous; they are not inherently inefficient or burdensome. However, citizens tend to focus on those rules that contradict their own interest, imbuing them with negative associations (Dehart Davis, 2015) . This research seeks to build on the green tape scholarship by viewing rules beyond the organizational level, examining rulemaking in a broad, federal context with vast implications for environmental and societal engagement and implementation. While this work utilizes the normative assumption that bureaucratic agencies have the potential to enhance democratic participation and achieve admirable ends, such as enhanced social equity, it recognizes principal agent and public choice theories. Those theories produced many of the assumptions underlying existing r ulemaking r esearch. The principal agent model provides a theoretical understanding that though seemingly contra dictory to the deliberative democracy perspective provides a unique complement and constitutional basis for the enhanced role of the bureaucratic state. T he principal agent model alone fails to recognize the constitutional framework of bureaucratic norms. The foundation of public administration is


38 democratic constitutional norms, regime values, the rule of law, and the constitutional traditions of the Ameri can government (Newbold, 2010; Newbold & Rosenbloom, 2017). This foundation allows for subsequent pillars of public administration to be built as regime values (Rohr, 1986). Among those values of economy, efficiency, effectiveness the nascent regime v alue of equity also is grounded on this democratic constitutional foundation (Frederickson, 1971). This research situates itself within this intellectual tradition and seeks to enhance the understanding of equity as a pillar of public administration. With this understanding of the basic theories of bureaucratic discretion and its importance, this review now turns to literature on the rulemaking function to explore what scholars already know about this key tool of bureaucratic agencies. Theories o f Rulemakin g and Empirical Findings Competing perspectives and frameworks influence empirical research on the rulemaking function. This research focuses on the structure of, and implications for, rulemaking as an form of policy implementation. Scholars study determi nants of rulemaking, the process or how rules are developed, and the constraints of rulemaking. Contemporary rulemaking theorists ha ve examined process oriented questions, describing the key elements of the Administra tive Procedure Act (APA) and its emphas is on information, public participation, and accountability (Kerwin, 2003). Much attention is paid to formal structures of rulemaking, such as the APA, and explaining the process through a logical and comprehensive progression of linear events (West, 2005) . Theoretical Background a nd Key Assumptions A options include, but are not limited to, rulemaking. While procedural requirements of the APA provide a basis and guiding framework for rulemaking , many exceptions and alternatives exist. Types of Federal rules, such as those made


39 through legislation or Executive Ord er. The executive branch may forego rulemaking and instead issue policy guidance in the form of notices, manuals, or guidelines to avoid the cumbersome process and requirements for public participation, information shari ng/gathering, and accountability to judicial review (Kerwin, 2003). Thus, agencies decide between a cumbersome rulemaking framework and a more streamlined approach to policy implementation. M ost of the empirical research focuses solely on the formal rulema king process, given the myriad sources of textual data once an agency chooses to undertake rulemaking and the APA is triggered. There is scarce research on the importance of contributing factors including contextual and historical variance in the decision making processes within the bureaucracy prior to decision s to undertake rulemaking (West, 2005). M uch theorizing about rulemaking points to inherent paradoxes within the process. Administrative agencies are expected to satisfy competing aims simultaneously : economic ends as well as political motives (Wilson, 1980), responsiveness to a plethora of stakeholders who legislative functions (Kerwin, 2003, 2007), and pre paration as well as openness and transparency (West, 2009). A gencies must also balance thoroughness and efficiency with timing constraints and discretion (Carpenter, Chattopadhyay, Moffitt, & Nall, 2011). These competing tensions form the basis for examini ng rulemaking theories. In The Politics of Regulation, a compilation of case studies and analysis of regulatory actions, James Q. Wilson (1980) balanced economic arguments with a complex and politically charged reality. In the 1970s, political scientists viewed regulatory and rulemaking actions through an economic lens as discussed above, combining principal agent models with theories of


40 agency capture, iron triangles, and interest group libe ralism (Lowi, 1979), all of which revolved around maximizing the rational economic impulses of bureaucrats, politicians, and interest groups or industry. Wilson (1980) edited volume describes paradoxes that are not easily explained by economic reasoning. (1981) describes this theory as: A framework which takes into account the political, and a framework sophisticated laced on processes of coalition formation and maintenance keyed to the distribution of policy costs and benefits, the balance within agencies among the norms of careerists, politicians, and professionals, and the regulatory environment, composed of such el ements as technology, price structure, the political temper of the times and associated influential ideas about policies and institutions, and the dispositions of controllers, such as legislat ures, executives and the courts. (p. 518) Thus, e conomic influe nce, outcomes, and po litical po wer play a role in the proliferation of rulemaking, especially concerning traditional regulation of industry. E conomic assumption s only form a partial basis for the highly contentio us process of rulemaking, even in industry a nd business regulation the most oft ideas, and interests must be balanced and considered . (1983) developed a framework to examine the rulemaking process as a sequence of events, a sort of stages heuristic approach. He asserts multiple stakeholders and competing interests play important roles, all of which the rule makers and bureaucrats themse lves must balance and address. Within the first stages of rulemaking the origin of rulemaking activity and the origin of an individual rule tivity must be mandated or authorized by law and statute. Second, any individual rulemaking activity is


41 determined by three primary factors: (1) the content of the legislation, (2) internal sources, and (3) external sources. The content of the legislation may prescribe deadlines for rulemaking activity as well as self , agency fails to meet the rulemaking deadline. The sources internal and external to the rulemaking agency are comprised of competing interests, principals, and signals, which create an added level of complexity. Internal deter minants may include politically appointed leadership, S enior E xecutive S ervice (SES) bureaucrats, advisory committees convened of internal and external stakeholders impacted by rulemaking activity, program office and field staff, and an General Counsel and legal analysis. External sources include c ongressional or White House level guidance and political objectives, signals from other agencies or branches of illy, 1983). While this linear model provides a useful organizing mental model and framework, Kerwin (2003) cautions that rulemaking is not a linear model and agency rulemaking activities vary in terms of complexity, involvement, and sequence (p. 84). Age ncies themselves must balance managerial values and aims internal to their organizations, such as focusing scarce time and resources to prioritize objectives and meet their own outcome goals, while at the same time overseeing quasi legislative functions th at should be open and democratic (Kerwin, 2007). The Congress enacts a statute, rulemaking commences shortly thereafter. However, Kerwin (2003) describes key determinants of rulemaking from three pr imary sources: first, an agency may undertake rulemaking to address emerging issues or revise obsolete regulations. Second, the citizenry may petition the agency to make a rule. Third, a new rule may be required when regulations or law s are challenged thro ugh litigation. Undergirding all of these reasons, new and amended legislation itself determines the


42 augments the linear understanding that agencies only undertake rulema king when and if a new statute is legislatively enacted. Empirical research has bolstered this view of complexity and supports the claim that many external and internal sources influence agency rulemaking t iming. One oft studied source is political influen ce both internal and external to the agency. The political atmosphere re gimes within which agencies decide to undertake rulemaking ha s a broad influence (Shapiro, 2005; Shipan, 2004). P olitical appointees send signals to bureaucrats and may influence a gency rulemaking, a lthough joint political signals from both the legislative and executive branch may have an amplified impact (Wood & Waterman 1991; 1994). The political party that control s the legislative and executive branch es has been found to have an impact on regulatory focus, with Democrats leaning toward equity and Republicans favoring efficiency in rulemaking (Kim & Gerber, 2005). Other empirical analyses point toward more than political signals in determining agency rulemaking actions and respons e. Terman (2013, 2015) suggests that competing values, concerns with participatory action, and institutional factors impact whether, how, and to what extent agencies decide to undertake rulemaking. Terman (2013) finds that in the context of state level c entralized contracting regulations bureaucrats are influenced by agency attention, path dependency, and institutional design. Terman (2015) further suggests that two primary factors drive agency selection of rulemaking areas : (1) internal organizational influences and shocks, such as strategic behavior focused on making some programs/functions more salient, and (2) external influences and political signals from elected officials and the public. Thus, agency


43 selection of areas where they might engage in formal rulemaking is careful and measured due to the time and resources that must be invested in such efforts (Terman, 2015). The assumption of a sequential process in which Congress leads the rulemaking process by drafting legis lation fails to account for a variety of confounding factors and a more complex reality of competing demands, priorities, and ever increasing agency mandates in a time of limited budget, staff, and resources. While rulemaking may occur within legislatively mandated deadlines, sometimes rulemaking occurs years or decades after Congress passes statute s . Agencies often commit time and limited attention to updating or modifying outdated regulations. While the principal agent theory holds that Congress leads and directs the bureaucracy, much discretion remains, especially in terms of timing (Spicer & Terry, 1993; Rosenbloom, 2000 ) . As administrative discretion budge ts, appointments, and even administrative procedures associated with rulemaking may not constrain time discretion and could even exacerbate the gap between Thus, bureaucrat ic discretion and constrains may drive the timing of rulemaking actions. Research shows that timing constraints imposed by legislation often do more harm than benefit in actual policy outcomes. Though agencies aim to be effec tive in implementing statutes and efficient in implementing rules timely , these goals may be counterproductive. I n the context of FDA drug approvals, Carpenter et al. (2011) find that c ongressionally imposed deadlines on agency actions may result in less quality implementation and safety problems. Moreover, Lavertu & Yackee (2014) find that statutorily imposed deadlines t end to lead to later rule finalization relative to agency target dates and that agencies miss deadlines and target dates whether or not such deadlines are statutorily imposed. Thus, while agencies must follow


44 c ongressional mandates when deadlines are impos ed, benefits to waiting and drafting proposed rules over time may outweigh the perceived costs of a longer period between legislation and rulemaking . The multiple factors , which have been empirically proven to contribute to agency decisions to undertake rulemaking processes , lead to a key finding of this l iterature: agency rulemaking is a critical step in the policy making process. Warren (2004) estimates that 90% of all laws in the United States are p romulgated through agency rulemaking rather than by legislatures. The broad discretion in terms of timing , which may respond to the multiple determinants of agency rulemaking , is a key assumption grounding this research design. D iscretion over agency actio ns and timing in the rulemaking process , more specifically, plays a n important agenda setting role. Agencies have discretion to determine when and if they address controversial matters, such as social equity , via rulemaking . Bureaucratic agencies themselve s have a critical, though often overlooked, role in setting the policy making agenda. While decisions to undertake rulemaking may be prescribed in law, bureaucrats have timing discretion and must contemplate a variety of internal/organizational factors and external signals and political control. The Rulemaking Process setting role, most empirical studies focus on rulemaking itself. That is, they begin their empirical examination once the agency publishes the Notice of Proposed Rulemaking (NPRM), as the data are richer and more readily available in terms of documents, public comments, and Federal Register notices. Empirical studies of rulemaking as a mechanism for public participation proliferated in the early


45 2000s with the use of and e governance ( Cooper, 1983; Rosenbloom, 2000; Shulman, Schlosberg, Zavestoski, Courard Hauri, 2003; Stanley & Weare, 2004). Many studies examine who participates in the notice and comment period, ho w that participation differs, and whose participation has the greatest relative impact in t erms of eventual changes to a final r ule. S public notice outcomes relative to public interest groups (Yackee & Yackee, 2006). They have found interest groups have a relatively larger impact on comment submissions over individual commenters (West, 2004). Levy and Franklin (2013) examined how different classes of commenters, such as individuals, ind ustry, organizational commenters, vary in how they frame contentious policy matters. Whereas individuals are more likely to emphasize broad logistical p roblems and anecdotal evidence, organizational stakeholders frame problems in term of technical standard s using language that quantifies costs and benefits (Levy & Franklin, 2013). The regulated community, using abstract legal and economic language supported by financial information, case law, or scientific data , typically submits more comments and may be be tter able to represent their interest than public interest organizations, advocacy groups or private citizens (Golden, 1998; Jewell & Bero, 2007). Moreover, when only business or lobbying groups submit comments during the OMB review process, change in the rule publication outcome is more likely (Haeder & Yackee, 2015). Despite these differences in commenter influence, all interest groups, regardless of type public interest, unions, trade organizations, or business/industry groups report in survey data t hat they view participation in rulemaking as highly important (Furlong & Kerwin, 2005). M oreover, the weight and importance these groups give to participation and commenting in the rulemaking process increased around the turn of the century (Furlong & Kerw in, 1995, 2005).


46 The e mpirical findings on rulemaking are important recent contributions to the literature and theories of public participation in this process. However, not all aspects of agency rulemaking are fully transparent and readily able to be exam ined in this way. William West (2009) points out one scholarship and theory: the development of proposed rules or the pre notice phase and other informal aspects of rulemaking . As Kerwin (2003, 2007) notes, manageri al considerations and internal agency processes must be considered and balanced against the open, democratic, transparent procedures of rulemaking notice and comment period. West (2009) characterizes this paradox, and viable participation in rulemaking also confine that participation to a late stage in policy l time, resources, and organizational effort into drafting proposed rules with specific, measurable criteria and language prior to publication, public notice, and formal solicitation of public comments on their proposals. West (2009) asserts that notices o preferred course of action to address any given problem and desired policy outcome, reflecting more a dministrative steps, which are less transparent than the notice and comment period governed by the APA. Additionally, these processes are less amenable to rigorous empirical study, but rather must be context specific and examined qualitatively. West (2009) examined these informal stages of rule development, pre NPRM and Federal Register publication. He observed through conversations with rulemaking officials and generally l acks the assurances of inclusiveness and transparency that are afforded by notice and -


47 development seeks participation by non governmental actors, typically limited t o those organized interest groups with the most access to information and financial resources, along with coordination with government actors, including the Office of Management and Budget (OMB) and state and local governmental agencies. The process is inf ormal, involving conversations, e mail exchanges, workshops, focus groups, and public meetings or hearings. In limited instances, this process may be formalized and structured through advisory committees or Advanced Notices of Proposed Rulemaking (ANPRM ), also called negotiated rulemaking . eg neg is a process by which interested parties are involved in drafting the preliminary or proposed rule through advisory or focus groups, interviews, or other engageme nt as the agency develops an initial draft rule (see Coglianese, 1997; Langbein, 2002; Balla & Wright, 2001). Research has shown that commenters can increase their impact by participating in early phases of rulemaking through the ANPRM process when negotia ted rulemaking techniques are utilized (Naughton, Schmid, Yackee, 2009). Naughton et al. (2 009) study of ANPRMs indicated that participants in early stages of rulemaking have direct effects on issue framing and have more influence on shaping the final ru le. An outline of the rulemaking process is included in Figure 2.1 below.


48 Figure 2.1. The Formal Rulemaking Process C ontradictory empirical findings exist , however, on this topic as well. Crow, Albright, Koebele (2016) examine state level rulemaking in environmental regulation in five states and draft processes are impactful in eventual final rulemaking outcomes. They find that there are common patterns of pre process infor mal stakeholder consultation, which may point toward a lack of access or equity for less powerful interests. They found that industry did not uniformly provide more comments but were represented in pre draft workshops or meetings. Industry groups appeared to participate with greater capacity, expertise and technical skill than private citizens in the pre draft processes. P re draft communication with an agency proves to be highly influential, as the substantive portions of rules change little after initial drafts are published for comment. This may be due to the organizational costs and resources already expended at the point of proposed rule publication (West, 2009). Moreover, those stakeholders with prior relationships to regulators had greater access (Cro w et al., 2016). The timing of outside participation in the rule development stage does vary significantly based on agency and policy contexts, s o it is t policy arena. West (2009) suggests that agency decisions about participation in rule development are typically managerial


49 the character of pre notice participation its extent, its timing, its content, and the mechanisms through wh ich it occurs varies a great deal, both across agencies and within agencies from one development, but various important research questions related to this aspect of r ulemaking remain under studied and unexamined. West (2009) suggests that pre notice rulemaking functions and the informal of aspects of rulemaking facilitates the exploration of issues and accommodates multiple interests required by the delegation of legis lative authority (p. 594). Although much of the pre notice rulemaking is informal, there are also informal and internal agency processes throughout the entire rulemaking process which are also not well understood. In other words, the first proposition of t his research is: Informal rulemaking processes may facilitate the exploration of issues and accommodates diverse interests , which may enhance equity. This proposition will frame the research design by answering the descriptive question: How do bureaucracies informally address concerns of social equity in the rulemaking process? Figure 2.2 below outlines what formal and informal processes of rulemaking will be examined through this research design. Figure 2.2. Informal and Formal Processes of Rulemaking


50 Rulemaking a nd Equity While the competing considerations for agencies to undertake rulemaking slow the process, this might be particularly true for social policy regulation oriented toward addressing disparate outcomes. R , implement contentious administrative actions involving distributive po licies successfully (Deyle, 1994, p. 469). West (2005) synthesizes rulemaking literature and describes how the politicized process of defining policy goals, accommodating competing interests, and testing proposed e (p. 660). Agencies must justify rulemaking decisions based on probable effects of those rules. Means ends testing and effects of rules designed specifically to address disparate outcomes can be partic ularly contentious and ambiguous as they aim to create idealized outcomes that may be rarely, or not yet, achieved in the current system or program in question. This ultimately delays action through rulemaking and subsequent implementation. V alue judgments While Kerwin does not explicitly address concerns of equity within rulemaking, he does speak to the challenges of rulemaking for social programs at the Federal level. Kerwin (2003) explains, Such programs are created to deal with problems that sometimes cut across the entire society and economy. They are often the first substantial undertaking for the national government in areas that have either been the preserve of states and localities or left entirely to private transactions or relationships. Usually enacted by Congress against a backdrop of widespread public approval and high expectations, these programs are depended on to accomplish in a short pe riod of time what often prove to be monumental tasks. The legislation that establishes the program is often long on lofty rhetoric and ambitious objectives but quite short on o perational details and budgets. (pp. 89 90) Such is the case with the Fair Housing Act of 1968, passed in the wake of Martin Luther Ki ng, his final piece of Civil Rights legislation had a lofty goal to correct decades


51 of state sanctioned discrimination. The policy arena of housing cuts across many portions o f society, the economy, and has deeply personal impacts on community and the shape of neighborhoods. Housing policy had previously been left primarily under state and local discretion , with ad hoc Federal homeownership programs and subsidies , which contrib uted to segregation and disparate outcomes . A few case studies link equity to Federal government rulemaking. Although most of these relate to business or industry regulation, they provide useful templates to begin to examine rulemaking around equity issu Jeremy Rabkin addresses one case study that focuses on equity in rulemaking and the puzzling record of prolific regulations but lax enforcement. Rabkin (1980) examines the Office for Civil Rights (O CR) in the former Department of Health, Education and Welfare (HEW). (HEW is now housed in two s eparate federal agencies : Department of Education and the Department of Health and Human Services (HHS).) Rabkin party, legal pressures to follow statutory guidelines, nor constituency group pressures could fully . He asserts all these factors must be considered together, as the agency carefully followed legal or court precedents in promulgating its detailed regulations regarding race, disability, and gender discrimination. He describes how equity and civil rights pose a unique challenge for administrators and age ncies in terms of both rulemaking and policymaking functions as well as subsequent enforcement. In a case study of the Federal Energy Administration, Regens and Rycroft (1986) examine procedural and substantive equity through the rulemaking process. They explain,


52 rocedural equity involves access to, and participation in, the rulemaking process through procedural elements outlined by the APA, whereas substantive equity seeks to examine distributions of tangible and symbolic goods, sanctions and incentives an agency may apply, and the benefits and cost distributions in an . Regens and Rycroft (1986) argue that because output and outcome measures of substantive equity are highly subjective, any true assessment of bureaucratic performance in addressing concerns of equity must take into account both procedural (or participative) equity as well as substantive equity outputs in the Final Rule . Regens and Rycroft (1986) ask three primary questions: (1) were some petitioner groups more likely t han others to receive favorable treatments? (2) were some more likely to receive favorable results? and (3) what relationship existed between petitioner treatment and results (p. 425) . The study specifically examines where types of relief from rulemaking o r regulatory requirem ents were requested and granted . They find that type of petitioner group is only modestly related to procedural or substantive equity and suggest that other variables might be more strongly correlated to equity, such as the type of reg ulatory action or form of relief requested. However, Regens and Rycroft (1986) conclude that procedures do influence outputs and consequences, doing more than merely giving a sense of legitimacy and fairness. Based on this conclusion, the second propositi on is developed: Procedural equity, achieved through participation and agency responsiveness in the notice and comment period during formal rulemaking processes, may lead to outcomes that enhance substantive equity.


53 This proposition is replicated and investigated using a new policy arena and context. The hypothesis guide s the research methodology and structure around the final research question: To what extent do those formal processes lead to substantive social equity outcomes? Severa l more recent empirical studies looking into equity in rulemaking are worth mention and provide add itional context and an explanation for competing propositions. Langbein (2002) looks at the responsiveness and equality afforded to participants in the Envir onmental processes without pre notice participation mechanisms. She finds that negotiated rulemaking appears more responsi ve than conventional rulemaking. This finding may partially support the first proposition that informal processes , prior to the notice and comment period , allow for equity and access. However, paradoxically, her results show that outcomes of negotiated rules may be more unequal than outcomes of conventio nal rules without advanced stakeholder engagement. She explains that this may be related to differences in political capital rather than economic resources. This puzzle leaves much room for further dialogue and explanation , which will be explored in the co mparison between procedural and substantive equity in the formal and informal rulemaking processes. of whether procedural equity might increase during informal and formal rulemaking processes (see Crow, Albright, Koebele, 2015; Roman, 2017). Crow et al. (2015) exp of regulatory staff are important to understand because these perceptions may influence stakeholder outreach by agencies and pre draft processes undertaken, and therefore staff perception of equity in representation of stakeholders d uring the rulemaking process has the


54 correlated to their involv ement with policy formulation and the rulemaking process. These assertions and findings present additional variable s that must be considered when examining Study Cont ext a nd Theoretical Contribution Most analyses of rulemaking do not focus explicitly on concerns of social policies and equity within rulemaking. This is not surprising given an analysis which shows less than 5% of articles published in Public Administration Review , a premier journal in the field examine issues of e quity (Gooden, 2015). Nevertheless, theoretical and empirical findings related to rulemaking on equity can frame the research questions in useful and meaningful ways, providing insight into how determinants of rulemaking are unique in the context of social programs and rules that aim to promote or achieve social equity. An important variable that scholars and researchers may consider in examining rulemaking for social equity is bureaucratic agency and policy type. While Regens and Rycroft (1986) and Langbe in (2002) examine rulemaking through an equity lens, they observe only private industry and profit motivated stakeholders. They look at regulatory policy, in which the Federal government enforces laws and statutes over industry groups. Their research does not focus on public actors, such as local government bodies, neighborhood organizations, or advocacy groups. One theoretical lens explains why it may be important to examine different agencies, policies, and rules. Lowi (1985) defines four types of bureau cratic agencies, predicated on the policy types they propagate, implement, and oversee: the regulatory agency, the distributive agency, the redistributive agency, and the consti tuent agency.


55 ulated by some governmental authority expressing an intention to influence the behavior of citizens, individually or collectively, by use of positive or negative is typology defines how the government coerces or reinforces its o bjectives either at the level of individual conduct or environmental outcomes. Figure 2.3 below, adapted from Lowi (1972) , describes how policies are understood on two spectrums : level of coercion (immediate to remote) and level of conduct (individual or e nvironmental) . Whereas regulatory policy works through immediate coercion of individual conduct, such as through elimination of substandard or unsafe goods, unfair competition, or fraudulent practices; redistributive policy works through immediate coercion at the environ mental level, seeking to influence the allocation of wealth, property, or rights among large groups states, local or regional interests, or demographic groups . Regulatory agencies oversee policies, which involve concentrated costs and marginal, albeit wi dely distributed benefits (Wright, 1988; Newman, 1994). At the Federal level, regulatory agencies include those looking towards commerce, law enforcement, and business or professional regulation, including the Environmental Protection Agency (EPA), the Equ al Employment Opportunity Commission (EEOC), the Federal Aviation Administration (FAA), the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), the Occupational Safety and Health Administration (OSHA), the Securities and Exchange Commis sion (SEC), among others.


56 Figure 2.3. Redistributive agencies oversee legislation intended to redirect the allocation of wealth, property, or other rights among social classes or racial groups in a society. Redistributive policies typically seek to shape the environment of conduct and, to achi eve equity, that may mean advantaging historically marginalized groups. Shaping conduct in a broad federal regulation is challenging and may necessarily rely on state, local, or other actors to put into place their own policies in line with what some legal scholars describe as a meta regulation (Gilad, 2010). S ome scholars of AFFH argue that regulatory reform may be classified as a meta regulation (Steil & Kelly, 2018). Federal agencies include the Department of Housing and Urban Development (HUD), the Dep artment of Education, the Department of Veterans Affairs (VA), and the Department of Health and Human Services (HHS). Newman (1994) argues:


57 Because redistributive agencies maintain and manipulate categories of human beings (Ripley and Franklin, 1987, p. 93), their rules affect society on a larger scale than any other. Redistributive agencies discriminate along broad class lines: between the money providers and the service demanders, rich versus poor and young and employed versus old and unemployed. Becau se a number of actors perceive that there will be distinct winners and losers, the stakes are thought to be high, and this fact means the policy making process will be marked by high degr ees of visibility and conflict. (p. 279). This study examines a highly visible re distributive a gency issuing a meta regulation in the contentious policy arena of fair housing . This allows for an enhanced understanding of procedural an d substantive equity through rulemaking, by expanding previous research, wh ich primarily examined rulemaking in regulatory agencies that exert direct control on individual actors rather than on the environment of conduct. From a sampling of existing studies on rulemaking examined in this chapter, the majority of these studies utilize contexts of regulatory agencies. The table in Appendix 2.1 demonstrates that the vast majority of empirical examinations of rulemaking relate to regulatory agencies and policies. Of the 32 empirical studies examined, 19 (~60%) use case studies of agencies or rules related to regulatory policies at the Federal or S tate level. An additional nine empirical examinations look at rulemaking questions, such as participation or comment patterns across multiple agencies, rules, or policy types. Only two case studies utilized redistributive agencies or policies in their examination: (1 ) Furgol & Helms (2011) examination of the state level implementation of No Child Left Behind (NCLB) regulations a nd rulemaking, and (2) Rabkin (1980) descriptive study and analysis of the Office of Civil Rights discussed above. Given this dearth of information on redistributive agencies and the rulemaking framework within those agencies, this study uses an in dept h extended case study to examine the aim to achieve equity in state, metropolitan, and local communities. The Federal government,


58 through this rule, takes an active stance on directing quasi governmental and governmental actors to incorporate concerns of equitable benefits and access to communities into their planning processes. The AFFH is redistributive in that it directs other governmental actors to give rights an d benefits, in the form of access to neighborhoods of opportunity or reinvestment in historically disinvested neighborhoods, to racial and class groups. The AFFH defines racially and ethnically concentrated areas of poverty (RECAPs) to identify and target historic hindrances and directs local and state actors to address disparities. The AFFH Rule provides prime example of a key assumption of this study: that agency discretion in rulemaking and timing of rulemaking activities matters for policy implementatio n. The AFFH rule implements provisions within the 1968 Fair Housing Act that had not previously been enforce d . These provisions addr ess concerns of disparate impact that is, the incidental discriminatory effects of segregation and lack of access stemming from local or state policies that do not have explicit equity aims. In 2015, the Supreme Court affirmed the Fair Housing constitutional authority to intervene in cases of disparate impact (see Texas Departm ent of Housing and Community Affairs v. The Inclusive Communities Project , 2015 ). Th e Court , along with a myriad of other determinants such as Presidential politics , Executive Orders , senior leadership, media and external triggers and events l ed HUD to publish the Final AFFH Rule almost four decades after the initial legislation was passed. Study P ropositions To summarize, the literature leads to several propositions and hypotheses, which will assist with answering the research questions and struc turing the research methodology. T wo key assumptions ground these propositions (1) R ulemaking serves an important role in creating


59 deliberative democratic processes and equitable outcomes and (2) A gency discretion in terms of rulemaking and timing plays an important, but unexamined, factor in the rulemaking process . Those propositions are restated here in the order that will most closely align with the methodological investigation, outlined in chapter 3. Proposition 1: Procedural equity, achieved through participation and agency responsiveness in the notice and comment period during formal rulemaking processes, may lead to outcomes that enhance substantive equity. Proposition 2: Informal rulemaking functions may facilitate the exploration of issues and acco mmodations of diverse interests, which may enhance social equity. These propositions are examined within an intensive case study of the Affirmatively Furthering Fair Housing (AFFH) Rule as discussed above. This case allows a context ric h examination of earlier processes and the most important agency actions and decisions that influence rulemaking, The study first seeks to augment and enhance prior research on how for mal procedural equity impacts substantive equity within a context of a redistributive, rather than regulatory, agency (Proposition 1). Second, a qualitative examination will seek to unpack the black box of proposed rule development to determine when and how agencies engage stakeholders outside of ANPRM or reg neg (Proposition 2). This examination contr ibutes to th e literature by investigating the s e two propositions in the context of a redistributive agency and policy, aimed toward impacting the environment of conduct via meta regulation and redirecting the allocation of access and rights among social, r acial, ethnic, and gender classes in a society (Lowi, 1972). The next chapter discusses the methodology utilized to examine the two propositions.


60 Table 2.1 Research Questions Link ed to Study Proposition . Research Question Proposition How do bureaucracies formally address concerns of social equity in the rulemaking process? To what extent do those processes lead to substantive social equity outcomes? Procedural equity, achieved through participation and agency responsiveness in the notice and comment period during formal rulemaking processes, may lead to outcomes that enhance substantive equity. How do bureaucracies informally address concerns of social equity in the rulemaking process? To what extent do those processes lead to substantive social equity outcomes? Informal rulemaking functions may facilitate the exploration of issues and accommodations of diverse interests. I nformal procedural equity may enhance substantive social equity outcomes.


61 CHAPTER III RESEARCH DESIGN This study examine s how bureaucracies balance demands for deliberative democracy and address social equity through the rulemaking process, using as its context the Department of (AFFH) Propos ed and Final Rul e (2013, 2015) . This c a se selection is appropriate for hypothesis generation and testing of the propositions in a unique contextual setting. Case study methodology is appropriate for exploratory research such that propositions may then be tested across a wider variety of cases to determine generalizability of a previously unexplored phenomenon. Case studies are also suitable for in depth assessments to identify processes and variables that have not been previously identified in large N quan titative, multi case research designs . F indings from case stud ies can then be extrapolated and explored in subsequent research (Yin, 2003). Moreover, stud ies of complex phenomena such as urban poverty, segregation, and social inequality, face a methodological dilemma . S uch studies may be undervalued by quantitative researchers , and they often are so context dependent as to lack generalizability (Small, 2009). To address these criticisms, scholars suggest implementing an extended case method in which a case is analyzed in relation to the broad social, and in this case political and constitutional, forces which shape it (Bur awo y, 1998; Bur a w o y et al., 1991; Gluc kman, 1961; Small, 2009). The significance of the case and the findings, thus , point not to statistical significance or generalizability to other similar cases; rather, the case seeks to reveal societal significance (Bur a w o y et al., 1991; p. 281). In the c ase of the AFFH rulemaking , the extended case method reveal s the interplay between socio political forces, namely the American political system and its foundational norms of constitutional democracy, juxtaposed against bureaucratic discretion and


62 the effort to enact rulemaking for intractable and complex issues, such as social equity in fair housing . This chapter outlines how the two propositions have been investigated to answer the research questions: RQ1: How do burea ucracies informally and formally address concerns of social equity in the rulemaking process? RQ2: To what extent do those processes lead to substantive social equity outcomes? The research was conducted in two phases. The first research question was exa mined via two distinct propositions that address the formal and informal aspects of rulemaking. The first phase examined formal processes, where publicly available data were gathered and analyzed. During the second phase, public officials were interviewed to address how the Federal government addressed concerns of social equity informally in pre decisional and rulemaking phases . While chapter two demonstrated how the early stages of rule development are often the most in formal, it was necessar y to work backwards in this research to develop a deep understanding of key stakeholders , context , and outcomes . The key p hases , the propositions those phases examine, and the research methods and data sources utilized in each phase, are outlined in Table 3.1 below. Table 3.1 . Research Phases Phase Proposition/Step Data Sources Analysis Method & Tools Phase 1 Procedural equity through formal rulemaking will lead to outcomes of substantive social equity. Publicly available data: Comments, Agency responses submitted via AFFH Proposed Rule and Final Rule 5 Step Qualitative Data Analysis Directed approach ( NVivo and Excel )


63 Table 3.1 Phase I The first phase of research investigate d Proposition 1 through qualitative analysis of publicly available data . Th e proposition relates to the formal aspects of ru lemaking and procedural equity and participation achieved through these f ormal mechanisms of rulemaking. Previous research implies that the tene ts and statutory bounds of the Administrative Proc edure Act (APA) through formaliz ed mechanisms for public participation, transparen cy, and deliberative democracy allow for equitabl e access to the agency rulemaking process . Through the formal controls of the public notice and comment period, agencies might achieve procedural equity. This procedural equity may then lead to outcomes that are more substantively equitable in the Final R ule . This proposition is based on the examinations and assertions of Regens & Rycroft (1987) . As such, the research design and methodology were loosely based on their methodology. The data examined we re accessible online through Federal Register notices, including the AFFH Proposed and Final Rule , other agency documents, as well as petitioner comments and agency responses . The researcher gathered these documents via the online comment portal at Phase Proposition/Step Data Sources Analysis Method & Tools Phase 2 Informal rulemaking functions facilitate the exploration of issues and accommodations of diverse interests, which may enhance substantive social equity. Interviews with public officials involved in the rulemaking process Constant comparison analysis Qualit ative Data Analysis (NVivo) Final Analysis This analysis entailed comparison of formal and informal procedures during rulemaking in relation to the research questions. Qualitative Data Analysis Results Abductive Reasoning


64 , downloading them in the or iginal rich text, word, or PDF formats and saving with a note on the original commenter name or identifier. These files were subsequently uploaded into NVivo data analysis softwa re . Advantages of using publicly available data include the fact that these data do not change over time due to inclusion in formal research . According to data research often avoids reactive measurement error because th 403). Often participants in social research may modify their behavior or answers if they know they are being studied, but available data has been previously collected with out concern for the research or theories. Use of publicly available data also is appropriate for studying and understanding the past, understanding social changes and trends, allowing for replication and enhance ment of knowledge, and economizing financial, time, and personnel costs related to the research (Singleton & Straits, 2010). The coding and data analysis were conducted utilizing an approach called five step qualitative data analysis ( 5 Step QDA), which first outline d the goals and strategies for co ding, then match e d those strategies to available tools within NVivo, a qualitative data analysis software package ( Woolf & Silver, 2018 ). First, the 5 Step QDA process was enlisted to identify t he categories of commenters and the most sal ient themes within the comments. Codes were created to focus on specific variables: (a) classification of commenter type, and (b ) commenter objectives, including whether they support, oppose, or show ambivalence to ward the Proposed Rule. Th is step of the analysis involve d assessing and grouping the petitioner or commenter types utilizing the Source Classification function in NVivo . Th e following groups were expected to be identified


65 policy arena of affordable housing : public interest or advocacy groups, state or local governments, quasi governmental organizations such as Public Housing Authorities (PHAs), in dustry groups or membership organizations representing those governmental or quasi governmental organizations such as the Public Housing Authorities Directors Association (PHADA), Council of Large Public Housing Authorities (CLPHA), or National Association of Housing and Redevelopment Organizations (NAHRO), profit motivated industry groups such as housing developers, as well as individual commenters. The results in Chapter 4 report the inductive verification and further characterization and description of t hese commenter type classifications. Second, the content of the comments was coded . A ssuming commenters petitioned either in support, opposition, or with some ambivalence, more nuanced categories were created from actual observations and tested iterativel y utilizing constant comparison analysis, a qualitative technique outlined by Leech & Onwuegbuzie (2008). These sub modules were refined throughout the five step QDA process using the Nodes coding feature in NVivo. After the constant comparison analysis, c ontent categories and formulations for assigning units to specific categories were clearly outlined and defined (see Singleton & Straits, 2010). After classifying the types of commenters and coding the comments themselves , the researcher document ed the volume and nature of comments by commenter type to investigate and assess how different groups of commenters petition the government (see Levy & Franklin, 2013). The Source Classifications and Nodes in NVivo allowed for cross tabulation tables to be c reated to report the frequency with which each commenter type demonstrated support, opposition, or ambivalence. The cross tab analysis allowed for general observations regarding deliberative democracy and citizen participation in the rulemaking process, an swering broader


66 questions about who participated in rulemaking and how those groups tended to participate. Reliable and precise document coding allowed for subsequent data analysis to report and dissect the recurring themes as those themes relate to commen ter type and commenter values. The results quantify document coding through reporting: time space measures or the space devoted to certain topics measured by the percentage of the document devoted to specific themes, appearance of specific categories in a document, a frequency of which a category appears in a document unit (Singleton & Straits, 2010). The final part of the document analysis involved examining the Proposed and Final rules to determine how the agency modified the Final Rule as a result of formal public participation . The APA and the formal processes of r ulemaking dictate that agencies report all major and technical changes between the Proposed and Final Rule in the preamble to the Final Rule, which is published in the Federa l Register. The changes were analyzed as they related to major commenter sub categories of support, opposition, or ambivalence. The changes reported in the Final Rule were quantified and analyzed using Excel (see Meyer & Avery, 2008). The preamble of the F inal Rule notes key substantive changes between the Draft and Final Rule in list format. Each of these changes was reviewed and coded utilizing a directed approach to employ the same coding schema as employed in comment coding (Hsieh & Shannon, 2005) . The excel tool allowed for a binary one zero coding to note whe ther each major change support, opposition, or ambivalent suggested changes or clarifications . This process allowed the researcher to visualize how each substantive change rep orted in the Final Rule preamble related to commenter type and objectives to determine which commenters were most successful in voicing their concerns to achieve changes in the Final Rule . This analysis determined one key aspect of procedural equity: To what extent did the agency acknowledge and demonstrate


67 responsiveness to public participation? Appendix B provides a sample of the excel workbook tool utilized for this analysis. Phase I I U pon completion of Phase I , there was a better sense of how the formal rulemaking process unfolded, including the organizations, individuals, and government sectors involved in the notice and comment period , the agency responses, and the degree to which the rule incorporated metrics of substantive social equity . This exploratory research was foundational in providing for informed interviews about the informal agency processes prior to the Proposed Rule publi cation and during the drafting of the Proposed and Final Rule . Phase II focused on a deeper examination of the second research question : To what extent do informal processes lead development process, this phase of the research is integral in theory development. These interviews allow ed for an understanding of this black box and outlined how bureaucratic discretion before, during, and after the formal rulemaking processes impacted outcomes. O utreach to the public officials involved in the rulemaking process was conducted via email . The solicitation was directed toward public officials, id entified through the researcher s knowledge of and connections within the federal agency . The researcher tracked and recorded all s olicitation and interviews using excel (Meyer & Avery, 2008). One underlying philosophy of qualitative approach es asserts that shared experiences can be beneficial to a researcher in truthfully, reliably, and holistically reflecting the experience, perspectives, and actions of people (Douglas, 1976). In this case, t ent and HUD not only afford ed access and connections to key players, but also serve d to garner the trust and openness of current or former public officials who might recognize d the shared foundational


68 experiences . The position of the research er allowed int erview participants to speak freely , but confidentially, about internal agency processes and dynamics . Discussions and email communication with the Colorado Institutional Review Board (COMIRB) confirmed that no Human Subjects research approval was required to interview public officials about their role in public processes. The research summary, consent forms, interview scripts and solicitation plan were shared with the COMIRB to confirm that their formal approval of this research was not required. Additiona lly, the researcher confirmed with the Office of General Counsel at her office that there were no conflict of interest or other concerns with the research. Interviewee disclosure s and consent forms (included at Appendix C ) were distributed prior to the interview with the email solicitations . These forms were reviewed with interviewees prior to the recorded conversations and verbal consent was obtained . Semi structured telephone interviews last ed 20 5 0 minutes each . These interviews were recorded and later transcribed. Interview participants were de identified and provided a numerical identification to maintain anonymity via the interview solicitation excel tool, which was encrypted and stored securely. The interview s cript was developed u tiliz ing findings of the literature review and knowledge of the rulemaking process to address: 1. The key precedents and motivations for the decision to draft and publish the Proposed Rule. 2. The key influences and considerations that impacted t he Proposed Rule. 3. The extent to which, and the ways in which, the public comments and formal rulemaking impacted Final Rule outcomes.


69 4. The processes perceived as facilitating the greatest public participation and the processes they perceived as leading to t he most substantive outcome changes. The final question sought input on other officials or individuals who played a substantive role in the rulemaking process. This question allow ed for a snowball technique to identify additional interviewees and determine when sufficient representation had been achieved ( e.g. Simrell King, ). Appendix D outlines a full draft of the interview script. Interview analysis and co ding was also completed using NVivo software , the QDA Method , and constant comparison analysis as previously outlined (Leech & Onwuegbuzie , 2008) . Broad themes under each question and common responses were identified and reported. Key examples of each theme or insight were illuminated , where appropriate, utilizing direct interviewee quotes, while maintaining anonymity of respondents. The coding and analysis were implemented by a single knowledgeable coder, utilizing techniques to ensure reliability and replicability (Campbell, Quincy, Osserman, & Pedersen, 2013). This qualitative approach allowed for an in depth examination of bureaucratic discretion, public participation and citi zen engagement, and considerations of social equity during rulemaking. Analysis Th e two phase approach allowed for an examination of both the formal and informal aspects of agency rulemaking. The insights from the notice and comment period and transparency offered under the APA rulemaking procedures were complemented by interviews with officials to reveal those aspects of bureaucratic discretion, political considerations, and agency dynamics that were not readily apparent from the formalized , pu blicly available documents. The interviews themselves relied on the memory of agency personnel, which may have been fallible or incomplete. However, in utilizing multiple methods and interviews with multiple individuals, the researcher attempted to address these limitations to get a more complete


70 view of the informal rulemaking process. The final analysis of the results from both phases tie d these insights back to procedural and substantive equity. The analysis entailed examining these results in light of the theoretical definitions of both participative and substantive equity utilized in this research. Th is analysis relied upon a hypothetical inference approach, what Van de Ven (2007) calls abductiv e reasoning. using an approach called abduction or hypothetical inference (Van de Ven, 2007). Abductive reasoning is helpful in that it allows for an inductive observation to be subsequently tested deductively. In the course of this research, analysis of s econdary documents and interview transcripts through qualitative constant comparison allowed the researcher to inductively to find patterns, reach general conclusions, and pull out broad themes from observed phenomena . Those observations were then tied int o the extant theoretical definitions of different forms of equity during deductive analysis. Van de Ven (2007) asserts this abductive approach to theory development does not start r way toward a keystone idea from which the properties can be explained. Thus, instead of thinking of theory creation as being analogous to drafting on a clean sheet of paper, it is more helpful to think of it as one of erasing, inserting, revising, and re connecting ideas scattered on many papers that are In practice, this method entailed determining when and where key insights from the qualitative document analysis (Phase I ) and from qualitative interviews (Phase II) align with theoretical and s cholarly definitions of procedural and substantive equity. Through this analysis , any theoretical contributions an related to the informal processes of rulemaking might advance intellectual dialogue and existing theories of rulemaking, constitutional law, and the role of the administrator.


71 To conduct this analysis and deductive testing , equity was operationalized on two spectrums: procedural equity or the process oriented fairness and access and substantive equity. Procedural equity includes: (1) citizen engagement in the process (Murray & Hertko, 2011), (2) due process which in this case captures adherence to co mponents of the Administrative Procedure Act in the formal rulemaking process (Johnson, Johnson, & Svara, 2015; NAPA, 2005), and (3) agency acknowledgement and responsiveness to commenters in the Final Rule (Regens & Rycroft, 1986). Substantive equity is o perationalized into two main sub components: (1) recognition of disparities and (2) incorporation of outcome or quality measures of social equity. Recognition of disparities includes an emphasis on differences in outcomes experienced by protected classes u nder the Fair Housing Act, recognition that policies provide impact of policies reinforcing inequities over time (Steifel, Schwartz, Gould Ellen, 2011). The incorporation of outcomes or quality measures of social equity is operationalized as a proposal that benefits be expanded to the most disadvantaged classes (Denhardt, 2004), incorporation of of the quality of services or access provided to protected classes (Johnson et al., 2015). Table 3.2 below outlines this operationalizati on further.


72 Table 3.2 . Equity Ope r ationalization . Procedural Equity Operationalization Measure Sub Component Citation Procedural Fairness and Access Emphasis on meaningful involvement of citizens in planning process (especially groups historically marginalized) Rulemaking fo rmal and inf ormal process Murray & Hertko (2011) Due process and procedural fairness, adherence to the legal aspects of equal access As it relates to the APA and Formal Rulemaking processes Svara & Johnson (2011) NAPA (n.d.) Agency acknowledgement of and response to commenter (s) Regens & Rycroft (1986) S ubstantive Equity Operationalization Measure Sub Component Citation (1) Recognition of Disparities (in policies, outcomes, over time) Emphasis on disparities and differences in outcomes, by protected classes under the F air Housing Act (race, national origin, religion, color, sex, familial status, disability) Svara & Johnson (2011) Recognition that policy programs may provide different outcomes for different demographic groups ("For whom is this program good?" p. 36) Frederickson (2005) Review of current policies, practices to determine level of access and analysis of reasons for unequal access (Access Criteria NAPA) Svara & Johnson (2011) NAPA (n.d.) Recognition of administrators' role in disparities Smith (2002) Recognition that historical, political, social, and economics structurally influence prospects for access, opportunity, and outcomes Gooden (2009) Acknowledgement of adverse impact over time Steifel, Schwartz, Gould Ellen (2008)


73 Table 3.2 Substantive Equity Operationalization Measure Sub Component Citation (2) Outcomes and Quality Metrics of Social Equity Emphasis on meaningful involvement of citizens in planning process (especially groups historically marginalized) AFTER rulemaking process, in AFH Planning, etc. Murray & Hertko (2011) Proposal that benefits be expanded for the most disadvantaged classes Denhardt (2004) "Emphasis on how an organization promotes, distributes, and evaluat e s the provision of public 9) Gooden (2015) Quality or review of level and quality of services provided to different groups and individuals and the consistency in nature of distributional services (Quality Criteria, NAPA) Svara & Johnson (2011) NAPA Criteria of Social Equity Measures outcomes in reporting mechanisms Brunet (2011) Accountability mechanisms (job positions, public reporting on achievements, or resources tied to outcomes pay for performance) based on equity outcomes or change in disparity measures over time Gooden (2009) This ab ductive analysis provided the basis to begin to answer the research questions . T hrough abduction inductive analysis and application of those results deductively to the theoretical definitions of equity the research analyzed the results t o determine how and whether the rulemaking processes allowed for procedural equity and substantive social equity.


74 CHAPTER I V RESULTS This chapter presents the detailed results of both phases of research including the examination of the formal and informal aspects of rulemaking throughout the Proposed and Final Affirmatively Furthering Fair Housing (AFFH) r ulemaking processes. First, the formal aspects of ru lemaking examined in Phase I are outlined, including a description of the commenter s , an outline of the comment coding developed through constant comparison analysis , and an examination of how the public formally participates . Results from Phase I also dem onstrate how the agency formally responded to public participation in the Final Rule . Phase II r esults describe the broad themes surrounding informal rulemaking processes revealed from interviews with policymakers . The interview data detail t he key precede nts and determinants of rulemaking outside of the formal processes governed by the Administrative Procedure Act (APA). Multiple data sources were collected for the within case analysis at each p hase, and the data sources are summarized in the Table below. Table 4.1 . Data Sources. Data Source N Total Documents 9 82 Comments 9 44 * Agency Documents 1 7 ** Interviews 5 * A total of 1,025 comments were received by the Department on the Proposed Rule . All 1,025 comments documents and attachments were reviewed and c lassified . Duplicate submissions or comments submitted several times in different formats by the same identified commenter were removed in the final coding analysis. * * The two primary agency documents examined in Phase I include the Pro posed and Final Rule. Other documents validat ed information, such as number of comments, and provided general background to inform the interviews and coding . Formal Rulemaking: Who Participates


75 The entire volume of comments submitted on the Proposed AFFH Rule (N=1,025) were downloaded from the electronic F ederal R egister (federalregister .gov ) and uploaded into NVivo for classification. Using the Five Step Qualitative Data Analysis (QDA) technique, sources were classified in NVivo to first identify commenter type classifications and later analyze content and themes by type. First , every comment was reviewed and classified into specific types , outlined and defined as follows : (1) A dvocacy groups ; (2) G overnments , including the following sub classifications: a. L ocal governments, b. Q uasi governmental organizations, and c. S tate governments; (3) I ndividuals , incl uding the following sub classifications: a. A nonymous individuals, b. A nonymous individuals with only their location identified, and c. Named individuals ; (4) I ndustry , including : a. Industry (membership) organizations, and b. P rivate industry . These broad categories are outlined below along with results of the number of commenters from each and the volume of their comments. Table 4.2 summarizes the comment submissions by commenter classifications. Table 4.2 . Commenter Classifications . Classification Percentage (overall) Percentage (sub group) Advocacy Groups 16.79% n=157 Government 14.33% n= 134 State Gov 3.53% n= 33 24.63% Local Gov 7.73% n= 68 50.78% Quasi Gov 3.53% n= 33 24.62% Individuals 63.85% n= 597 Named 52.62% n= 492 82.41% Anon ymous 6.95% n= 65 10.89% Loc ation Only 4.28% n= 40 6.70% Industry 5.03% n= 47 Industry Group 3.96% n= 37 78.72% Private Industry 1.07% n= 10 21.28%


76 Throughou t the initial review of comments, commenter type classification s were assigned and further clarified. A dvocacy groups included research organizations , legal representatives, or groups providing services to specific groups. Many nonprofit or research advocacy groups tend to provide more than one service . For instance, they may provide direct client facing services , such as legal services for low income families or advocacy, and they also conduct research or write reports on issues that directly impact their constituents. Moreover, the advocacy group classification may be a coalition or network of different advocacy or s ervice organizations . Advocacy groups submitted 17 % of all comments (n =157). The comments themselves tended to be longer, more complex, and demonstrate support for the rule. Many of these advocacy groups, particularly for the disability community, utilized a form letter and standard language to express concerns. The NVivo s oftware allowed for consistency of coding and analysis to examine and determine similarities and divergences across groups of commenter types or classifications, so this section also reports the percentage of coded commentary from each group that expressed support, opposition, or ambivalence (i.e., suggestions, questions, or recommendations) toward the Proposed Rule. Of all content coded in the adv all coded commentary demonstrated some form of support (reported as 33% support). The advocacy group comments also provided additional suggestions, recommendations, questions, or respons es to Proposed Rule Questions (28.7% coded as Ambivalent). G overnments were classified in three distinct ways: (1) state governments, including state community development organizers, state housing finance agencies, governors, or other representatives of state level government; (2) local governments , which encompass cities,


77 counties, and their appointed officials or local agencies; and (3) quasi governmental bodies , inclu ding those agencies that are run by Boards of Commissioners appointed by local electe d officials that operate somewhat independently, such as Public Housing Authorities (PHAs). Fourteen (14) percent of all comments were submitted by some form of government agency (n=134). Of all government comments , local governments represent 50.7% of tho se comments (n=68) and state government and quasi governmental each represent 24.6% (n=33), respectively. Government comments also tended to be longer and more technical in nature. Many responses would begin with a brief expression of support for the objec tives of fair housing and quickly pivot to concerns about cost, government overreach, or technical suggestions or questions. The comments showed minimal support (5.34%), with local governments expressing the most support (8.7%), state governments expressin g some support (5.03%), and quasi governmental organizations including the fewest expressions of support (2.29%). Conversely, opposition was higher with over a quarter of all comments showing some form of opposition to the Proposed Rule ( 25.82%), and quasi to the rule (36.37%). Local governments also commented with opposition to the Proposed Rule bulk o f government comments (36.14%) were devoted to recommendations, suggestions, questions, or feedback on the Proposed Rule. Sixty percent (60.81 % ) of the content of state as ambivalent , while a substantial amount of the commen t ary from local and quasi governmental organizations also falling into this category (27.33% and 20.28%, respectively) . Comments submitted by individual persons comprised the majority of comments at 63.85% (n=597) . Individuals were defined


78 individual person. I f a commenter state d their own background or affiliation with one of the other categories of commenter classification but did not specify that they are submitting on behalf of that ot her group, the comment was coded as belonging to the individual. Individuals are further classified as named individuals (82.41% of all individual comments, n=492) , anonymous individuals (10.89%, n=65) , and those who provide their location only but otherwi se remain anonymous (6.7%, n=40) . Most individual comments were brief, and provided limited feedback, suggestions, or questions (9.39% coded as Ambivalent). The majority of the content utilized anecdotal evidence and expressed personal opinions. Many (31.57%) indicated opposition to the rule , which was highest for those individuals naming only their location (45%) with similar levels of opposition expressed from named and anonymous individuals (32% and 31.57%, respectively). Some support for the rule. Again, the feedback was similar for named and anonymous individuals, providing 14.14% and 14.33% support, respectively, and lowest for individuals who only listed their location with only 3. 81% demonstrating support . Finally, industry organizations include membership organizations representing multiple actors typically government or quasi governmental actors, such as the Public Housing Authorities Directors Association (PHADA) or the Counc i l for L arge P ublic Housing Authorities (CLPHA) , membership coalitions representing state housing officials, mayors or local governments, and the National Association of Housing and Redevelopment Officials (NAHRO). Finally, private industry includes develo pers, builders, realtors, or others representing for profit, non governmental industry. Industry organizations submitted only 5.03% of overall comments (n=47 ) , including 37 industry groups and 10 private industry sources. Most coded content from these comm ent er s expressed opposition to the rule (38.5%) , with industry groups expressing


79 more opposition (45%) than private industry (32%). Some supporting comments were included (8.98%) , and private industry expressed more support (14.14%) than industry organizat ions (3.81%). These groups also included some comments that were ambivalent, which provided feedback, recommendations, questions, or responses to agency questions (3.45% overall). Table 4.3. Comment Trends by Classifications . Support Oppose Ambivalent Advocacy Groups 33.20% 0.93% 28.67% Government Overall 5.34% 25.82% 36.14% State Gov 5.03% 14.38% 60.81% Local Gov 8.71% 26.70% 27.33% Quasi Gov 2.29% 36.37% 20.28% Individuals Overall 14.33% 31.57% 9.39% Individual Named 14.14% 32.00% 6.76% Individual Anon 14.33% 31.57% 9.39% Individual Loc Only 3.81% 45.00% 0.14% Industry Overall 8.98% 38.50% 3.45% Industry Groups 3.81% 45.00% 0.14% Private Industry 14.14% 32.00% 6.76% Overall Total 8.28% 32.88% 16.45% Table 4.3 provides a detailed overview of the overall trends in commenter support, opposition, or ambivalent responses. Taking every comment into consideration across all commenter group classifications, the majority of commenter content expressed opposition to the Proposed Rule (32.88%). Meanwhile, 16.45% of all comments were ambivalent, and only 8.28% of all commenter content expressed support.


80 Formal Rulemaking: How Does t he Public Participate Abductive reasoning guided the comment codebook development. By first classifying commenter types , a cursory overview of all comment er data was conducted to detect patterns and broad themes. These themes could be classified via constant comparison analysis into three major categories , which were outlined above: comments which support the AFFH, those which oppose the AFFH, and those which were ambivalent , expressing some support or some opposition, outlining concerns along with general support, or providing some substantive feedback or suggestions rather than exp licitly stating support or opposition. Ambivalent comments might express mild support and then include a caveat of general concerns, suggestions, or asks. This ambivalent comment was t ypical of those submitted by advocacy organizations : However, we have comments on a few components of the Proposed These groups would generally provide lists requesting additional items be added to the Rule, such as a requirement for participants to provide mor e than one fair housing goal in their plans. Likewise, governments or typical response as follows: HCD is providing several These comments were coded as ambivalent since they offered concrete suggests or recommendations for the agency, rather than only stating support or opposition to the rule . Other ambivalent comments also made a specific request of HUD, such as issuing another Proposed Rule in lieu of a Final Rule or made g eneral observations, such as the inability to comment on specific Assessment of Fair Housing (AFH) tools without seeing them first.


81 Sub categories of support and opposition were also identified thematically and are outlined below before providing specific examples of each category through commenter quotations. Under categories of comments offering support for the Proposed Rule, there were three main sub categories identified: 1. Mission : These comments offer support based on the mission of fair housing to provide housing access , resources , and equal opportunity to all people , especially protected classes under the Fair Housing Act . The comments also may mention goals of social equity, integration, quality of services, access, or accounta bility. 2. Resources : These comments support the updated data provision and resources devoted to the enforcement of the Fair Housing Act under the Proposed Rule. The comments might also suggest requiring or providing for additional resources whether in the form of data, transparency, oversight, or participation requirements from HUD or localities, states, or grantees. 3. Change the Status Quo : These comments recognized historical disparities in outcome s due to past policies, practices, laws, administrative ac tions or structural barriers. The comments are typically aligned with supporting the mission of the Proposed Rule but corroborate that support with arguments about how and why it is important to change the current shape of communities. Alternatively , three sub categories of comments were identified as the broad themes capturing opposition to the Proposed Rule: 1. Overreach : These comments stress that decisions should be made locally , or that shape of communities, zoning, policies, etc. are beyond the control of the F ederal, S tate, or L ocal government. Additionally, comments may assert that the Proposed Rule or the


82 mission to affirmatively further fair housing is not constitutional or not authorized as part of existing Statute and law or that the Proposed Rule goes beyond congressional intent. 2. Cost : These comments mentioned financial costs, constraints, organizational capacity, and the lack of technical resources or ability. They might also spell out concerns of increased or unmitigated c osts of litigation surrounding fair housing issues . 3. Status Quo : These comments typically refer to the ideal shape of the country or community as it is now . The comments may mention how changes may result from this Proposed R ule, which would not be ideal, s uch as increased crime, poverty, changes in school quality, or a decrease in property value . These comments might also mention how only individual choices dictat e outcomes or success . Finally, the comments might include reference to times that historic "social engineering" did not work (e.g. busing, school integration, etc.). Common themes included mentions of unintended consequences and deservedness. It is worth noting that each of t hese sub categories of support or opposition could be viewed as poles to one another. For instance, opposition due to cost stands at odds with support based on the resources being provided through this new approach. Similarly, while some offered support ba sed on the mission of the Fair Housing Act or the neces sity for the F ederal government to act to ensure these ends, overreach arguments might state this propos al was beyond the scope of the F Fair Housing Act. Finally, status quo as just , ideal, or acceptable . The next section outlines examples of each sub category of support or opposition. It also reports which groups of commenters expressed each type of support the most and least within each sub category.


83 Mission based support typically noted how the commenter shared the goal of fair housing with HUD. One typical comment from an advocacy group representing a racial minority reads: furthering fair housing. It is an important step towards ensuring HUD grantees more proactively promote fair housing and develop more inclusive, diverse, and vibrant communities. Advocacy Group Language in these comments would typically acknowledge that the Proposed Rule is an important step forward to achieve the goal of equal opportunity. Of all commenter types, advoca cy groups used this logic most frequently in their comments of support (9.47% of their comments ) Proposed Rule for mission based arguments (2.01%). Support for the Proposed Rule based on the resources it might provide were also most typical of advocacy organizations , and some governmental commenters . Th ese types of comments of support might acknowledge the resources as a positive step. For instance, one quasi governmental commente r notes : T his tool will be a great asset to housing authorities who do not have the tools at hand to perform GIS analysis. It allows for PHAs to have a better understanding of where their tenants are residing. Other comment er s stated that more resources should either be provided by HUD or utilized by grantees, such as suggestions that HUD specify that grantees are encouraged to use additional local data or comments requesting that data on disability services, residences, homelessness, or other factors. Su pport based on resources also requirements for stricter public participation. Additional support might note the positive steps in provision of data and ask for addi tional resources or assistance from the agency: spacial [sic] mapping element of the proposed regulation. It will aid HUD, fund recipients, and the public to


84 assess the fair housing impact of proposed and ongoing projects. In addition to aiding planning, oversight, and compliance, the data will help to foster informed community discussion of fair housing as a benefit to all communities. Technical assistance from HUD in the interpretation and use of this data particularly in the first se veral years after will be essential to maximizing the benefits of this important Advocacy Group These comments acknowledge the benefit of these data and request ed additional resources or support throughout implementation. Advocacy groups again were the most frequent commenters showing support based on the resources in the Proposed Rule (14.1%). Industry groups and individuals who only provided their location made comments containing this argument with the least frequency (b oth were <1%). Many comments expressing support also noted the importance of changing the status quo and the historical effects of unfair housing practices. These comments would make observations regarding the current state of communities as justification for the need for such rulemaking. As one commenter stated: largely unchanged. Furthermore, access to neighborhood amenities is highly unequal African Americans and Latinos continue to live among more disadvantaged neighbors, to Advocacy Group These comments mi ght also acknowledge the governmental or institutional role in propping up and supporting segregation or hindering equal opportunity. One comment typical of this logic was offered by historian and legal scholar, Richard Rothstein: woul d be stronger if it were grounded not only in the language of the Fair Housing Act but in the constitutional obligation of federal, state and local governments to undo the effects of 20th century public policy that had the explicit intent of segregating th e races in metropolitan areas nationwide ( e mphasis added ). Individual The advocacy communities and individuals who work with marginalized populations h ol d a


85 deep understanding of the historic inequities that underscored the need for this rule. These commenters acknowledged th at th e current state of communities must be addressed and improved to achieve equal opportunity for all, while also noting policymakers active role in such outcomes. Finally, these comments might also suggest additions or changes to the Proposed Rule that would strengthen its ability to change the status quo, such as the inclusion of protected classes like the LGBT community who are not covered by the Fair Housing Act or its amendments. The comments also often noted that HUD needed to make clearer approach . That balanced approach would emphasize that the agency supports both encouraging mobility to high opportunity areas for residents in areas of concentrat ed racial and ethnic poverty and investment in those neighborhoods of concentrated poverty and ethnic/racial minority concentration which have faced historic disinvestment or redlining comments made this argument most frequently (1 2.65%) while all types of governments utilized this argument the least (1.02%). For those expressing concerns about the Proposed R ule, government overreach was one main argument used in op position. These comments broadly fell into two categories: (1) conce rns that decisions should be made locally , or that shape of communities, zoning, policies, etc. are beyond the control of the F ederal, S tate, or L ocal government, and (2) concerns that the Proposed Rule exceeded the scope of activities and enforcement as authorized by the Constitution or congressional mandates in the Fair Housing Act itself. Not surprisingly, local governments provided many comments and concerns related to overreach (12.7%), including a belief that these ac tions went beyond the scope of F ederal control and an assertion of their own (in)ability to influence outcomes. As one government commenter noted:


86 There are deep, long standing an d broadly rooted causal factors for these conditions that extend beyond the authority , capacity or resources of the State and/or local government housing entities required to prepare a Consolidated Plan (Con Plan) or AFFH. The summary of the proposed rule acknowledges the influence of factors other than housing conditions on racially or ethnically concentrated areas of poverty, but yet expects that subsequent policies, actions, and resource allocations of the Consolidated Plan or PHA planning process can (a lone) meaningfully address the causal factors for these conditions Government Industry groups expressed similar concerns regarding overr each at the F ederal level : Moreover, in an attempt to draft a one size fits all regulation, HUD has created a proposed rule that simply fails to respond to the realities on the ground ny comments were submitted related to the high profile case of fair housing enforcement in Westchester County, New York, similarly claiming overreac h or undue interference with local decisions: Consider what the social engineers at the Department of Housing and Urban Development are doing to Westchester County north of New York City. At issue is a 2009 settlement with HUD in which Westchester committ ed to develop 750 public housing units in mostly white neighborhoods over seven years. County executive Rob Astorino has financing for 305 units (110 of which are already occupied), putting Westchester ahead of schedule. HUD could have declared victory and moved on to a real mess like, say, Detroit. Instead, the agency is interfering with local zoning in Westchester to force more racial diversi m phasis added) Individual tside the control of some program participants, such as the modification of local codes, which in many States, are associated with State codes that local program participants have no jurisdiction or control over. For example, mandatory inclusionary zoning is not allowed in Texas. Also, construction of built out and has little or no Government individuals who remained anonymous or only listed their location, were particularly lively in this area. Some comments were straightforward: It is not the Federal Government's role to dictate to us how we live, where we live and with home we live. In fact it is the antithesis of the very Freedoms that Individual lives and the kinds of communities in which they choose to live.


87 The intrusion by the Federal Government into our individual lives -on so many different levels -is the complete opposite of how our Founding Fathers (and Mothers) intended this country to function. With each new regulation, the American ideal is furthe r Individual While other comments were even more passionately argued: 5173 P a land use power grab by the US Government and I categorically reject this blatant attempt to further the government's control over local land use laws. It is further evid ence of the Obama administration's socialistic equalization tactics and attempt to control a free people. I repudiate the entire concept . Individual The fallacy of that oppression does, however, serve as a pretext for HUD to expand its [sic] power f ar beyond Constitutional limits, and to try to determine where Americans can and cannot live. There is oppression to be addressed here, and it's the Federal Government's leaders and agencies increasingly trying to control every aspect of life for formerly free citizens. The continued expansion of Government power serves no American. Individual Additional comments cited some conspiracy theories about United Nations Agency 21 a deliverable from the UN Conference on Environment and Developmen t of 1992, k nown as the Earth Summit , which is a non binding action plan for sustainable development that local or national governments can voluntarily adopt (Grubb, 1993). One commenter stated: Agenda 21 are doing so to further the socialist/communist takeover of America. All the "data" presented is intended to equalize everyone into one plane of existence on all lev els. Individual These comments typically expressed concern about local authority, individual liberties or freedoms, and the power or right of the government, at any level, to effectuate change on these fronts. Local governments expressed the most concern in this area in their comments (12.7%), and individuals who only provided their location but no name (11.28%) and anonymous individuals (8. 7%) also expressed high levels of overreach concerns. Overreach as a concern was


88 Opposition to the Pr oposed Rule also related to its costs. Commenters often mentioned financial costs, constraints, organizational capacity, and the lack of technical resources or ability. They might also spell out concerns of increased or unmitigated costs of litigation. A c ommon assurance that an approved plan would guarantee that participants had met all obligations to affirmatively further fair housing and be protected from li tigation and held harmless for any factors beyond their control. As one leader in a S tate agency expressed: program participants . Overall concerns surrounding cost were mostly from participant grantees : state, local, or quasi governmental organizations or their industry groups. Those concerns relate to the decrease in overall funding of their programs, particularly funding for the administr ative fees and costs required to manage those programs, and the increase in the workload in terms of time, analysis, public participation, and planning. This comment was typical of these concerns: rease the work load of the communities who develop an AFH. Generally, when HUD changes its regulations or adopts new policies, these changes result in increased work for staff To create improved community participation, which is a large goal of the prop osed rule, will take a significant amount of work. Not necessarily paperwork, but cost to translate materials, and a lot of staff time to invest in creating meaningful relationships with community members who have not historically participated in the civi c process. Many times these communities are distrustful of government, and it takes repeated effort to build rapport. Our community has made a significant investment in increasing civic participation among our historically under represented community mem bers. This effort, although worthwhile, is very time consuming and requires more than one FTE (which is more than our entire CDBG staff ) Government

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89 Some individuals also expressed concerns of costs related to government spending and taxpayer investmen t required to implement these changes : Individual Individuals also expressed concerned about the cost to them as homeowners, individual tax payers, and what they perceived as t heir subsidization of low income programs. Overall, individual comments in opposition to the Proposed Rule on the basis of cost were relatively small (~4% for anonymous or location only individuals and <1% for named individuals), compared to other reasons for opposition. On the contrary, cost was the major factor of opposition for government organizations (16.46% overall , ranging from 9.5% from local governments and 29.5% for state governments). comments related to concerns surrounding cost. The final sub category in opposition to the AFFH Proposed Rule was arguments to maintain or uphold status quo . These comments commonly mention unintended consequences of the Proposed Rule or how changes may result from this rule , which would not be ideal, such as crime, poverty, school quality, or property value changes. To support the claim of unintended consequences, the comments might include reference to times that historic "social engineering" did not work (e.g. busing, school integration, etc.). This comment is typical of those concerns: scale social the demoralization of normal human self seen it before in forced scho ol busing, for instance, which has wound up forbidding helpful school choice by families, trapping kids in failed schools for the sake of the unions and this one will be no different, except that it is larger scale and will therefore Indiv idual These comments might also mention how only individual choices dictate outcomes or success and refer pointedly or implicitly to deservedness. As one commenter claimed:

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90 neighborhood is hardly fair to those residents who have worked so hard to achieve their station in life. If lower and low middle class people want to live in these neighborhoods, then they should Individual Some comments combined concerns of deservedness with concerns about changes to their own location only , noted: sustain without punishing the folks who have worked their way up to a certain economic level. If you go to communities that are poor, you mostly see complete neglect of the buildings, houses, streets, etc. Poor communities are full of loitering men, trash, crime, and broken down homes. Why don't people at every economic level take care of their properties and themselves? Because poverty is not a genetic condition, but rather a mental one. Most people are poor because of personal choice. They remain poor bec ause they are taught that they cannot change their circumstances by themselves. And so many poor people of every color sit around and wait for the government to change their lives. This regulation is another attempt to do Individual Over twenty Proposed Rule in this sub category . Finally, many mention how the status quo including the current policies, the nature of their work and program s regulatory framework for oversight and implementation of the Fair Housing Act is effective and sufficient to ensure they meet the mission and ensure equal opportunity. One commenter provides an implicit concern related to the status quo in c ertain areas of the country that was echoed across industry groups: uniformity where it does not already exist and may never exist. We wonder how HUD expects very low minority a reas, particularly in states like Montana, Idaho and Wyoming with African American populations in their entire states of .4%, .6% and .8% respectively, and West Virginia, Maine and Vermont with Hispanic populations in their entire states of 1.2%, 1.3% and 1.5% respectively to address the historic racial and ethnic settlement patterns and identify and take meaningful actions to change these Industry Group

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91 These concerns were commonly expressed for rural areas as well, where changing the cur rent makeup of communities would prove more challenging and perhaps less desirable. Overall, local governments made this argument with more frequency (5.97%) than state or quasi governmental organizations (1.16% and 3.46%, respectively). Less than one perc ent of comments submitted by advocacy groups made claims of opposition related to the status quo. Table 4.4 reports the coding of all comment content by commenter classification, including the six sub categories of support and opposition, as described abo ve. Table 4.4. Comments of Support and Opposition by Sub Category. Support Oppose Commenter Classification Mission Resources Change Status Quo Overreach Cost Status Quo Advocacy Groups 9.47% 14.09% 12.65% 0.19% 0.55% 0.25% Government Overall 3.94% 4.35% 0.79% 7.35% 16.46% 3.53% State Gov 0.62% 0.89% 0.44% 3.21% 10.38% 1.16% Local Gov 1.48% 1.71% 1.83% 12.70% 9.50% 5.97% Quasi Gov 2.01% 2.32% 1.02% 6.15% 29.50% 3.46% Individuals Overall 5.26% 6.99% 2.04% 6.44% 0.44% 23.56% Named 3.98% 3.50% 6.70% 8.69% 4.00% 19.86% Anonymous 5.26% 6.99% 2.04% 6.44% 0.44% 23.56% Location Only 2.53% 0.64% 1.29% 11.28% 3.98% 31.33% Industry Overall 3.26% 2.07% 4.00% 9.99% 3.99% 25.60% Industry Groups 2.53% 0.64% 1.29% 11.28% 3.98% 31.33% Private Industry 3.98% 3.50% 6.70% 8.69% 4.00% 19.86% Overall 3.69% 3.97% 3.40% 7.70% 7.27% 15.79% Table 4.5 summarizes overall results of this section, outlining the comment type, by subcategory with examples of each type of statement. It then notes the most and least prevalent commenter category to provide this type of comment.

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92 Table 4. 5. Comment Coding and Public Participation Coding Category Subcategory Examples Most Prevalent Commenter Least Prevalent Commenter Support Mission Support for Fair Housing Act goals; Protected Classes; Aim to provide housing access, resources, or equal opportunity; Overarching goals of integration, quality of services, social equity Advocacy Groups State Governments Resources Support for updated data provision; and Resources devoted to fair housing planning and/or enforcement Advocacy Groups Industry Groups, Individuals (Loc. Only) Change the Status Quo Recognition of historical disparities, structural barriers, de jure and de facto segregation or discrimination; Mention of current state of neighborhoods and fair housing as being inadequate Advocacy Groups Governments (All sub groups) Opposition Overreach Decisions should be made locally or are beyond the control of grantees; The Proposed Rule is not constitutional or is beyond the Fair Housing Act statute and congressional intent Local Governments Advocacy Groups Cost Financial costs, constraints, organizational capacity, lack of resources; Increased or unmitigated costs of litigation Quasi Government Groups Advocacy Groups Status Quo Housing, integration, and communities are fine as is; Changes are social engineering and will fail or lead to worse outcomes; Changes may result in increased crime; Denial of any existing structural barriers Individuals Advocacy Groups Ambivalence Questions for clarification; Suggestions for changes Government Groups Industry Groups

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93 These qualitative data analysis results were a first step in answering the research question: to what extent does formal rulemaking lead to social equity? These results reveal that public participation in the notice and comment period of rulemaking does not always align with agency goals to promote social equity. In fact, many individuals, government, and industry stakehold ers questioned the need for regulations and enhanced rules under the Fair Housing Act to affirmatively further fair housing. These comments expressed concern for government overreach and cost or capacity of the local and state grantees as well. The comment s in opposition to changes to enhance social equity were balanced with many detailed comments from advocacy groups for protected classes, affordable housing interests, low income individuals, or other marginalized communities in strong support of the rule based on its mission, the need to change the status quo, and the additional resources the Proposed Rule would provide. The next section now turns to reporting the results from the analysis of how HUD has formally addressed these concerns. This analysis des cri b es changes made to the Final Rule based on the public notice and comment period through the formal rulemaking process . Rulemaking Results: The Proposed And Final Rules The formal rulemaking process, as governed by the APA, makes certain considerations and final decisions transparent, as agencies address commenter and public concerns through the Final Rule preamble via Federal Register notice . The themes apparent in the concerns and comments were grouped and addressed in a Question and Answer section in the Preamble. This transparency allow ed the researcher to analyze each change as it related back to public comments and summarize how the agency responded t o the types of public support and opposition. Agency responses are ou tlined as they relate to how the agency consider ed, weighed, and addressed public comments, by the variou s types of support and opposition .

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94 This process was accomplished by analyzing the major changes outlined in the Final Rule and how commenters concern s were considered and addressed via the spreadsheet shown in Appendix B: Excel Tool Analysis Final Rule (Meyer & Avery, 2008) . The agency summarized comments in to themes , which align with the previous coding schema . Statements of mission based support were summarized as noting that many commenters expressed support, requesting swift implementation. The agency also summarized support in terms of the resources provided and a request for additiona l resources in three ways: (1) C oncern that HUD must ensure capacity to effectively carry out its oversight responsibilities outlined in the proposal, (2) R equests that AFH Plans include outcomes and benchmarks for increased transparency, and (3) R equests to clarify the process and consequence s for non submission or unacceptable AFH Plans. The support based on arguments to change the status quo were summarized as comments , which stated the Proposed Rule was a step toward increased opportunity in housing and accomplishment of the goals outlined in the Fair Housing Act. Finally, the agency acknowledged and summarized concerns about changing the status quo stating that the Proposed Rule may have seemed to discourage investments in neighborhoods with racially or ethnically concentrated areas of pove rty (RECAPs) encouraged in the Final Rule. The Final Rule also summarized opposition acknow l hout legal foundation, that it was an intrusion on affairs that should be handled by local jurisdictions for a 2015, p. 4 2278). The first part of that assertion recognizes arguments related to overreach, including the constitutional, legal, and statutory bases for the rulemaking and potential interference with local control. The

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95 opposing comm ents that were coded as a desire to sustain the status quo. The preamble continued to further acknowledge three other overreach arguments, including : (1) T he intrusion on local government affairs such as zoning, infrastructure and services; (2) T he unique status of States under the federal system that lack control over local governments; and (3) C oncern that the proposal expanded the Fair Housing Act into non housing spheres such as transportation, employment, and education. A lengthy section of the preamble also outlines the legal authority for the rule, addressing those comments that argued the rule was unconstitutional or went beyond the Fair Housing Act mandates. Finally, concerns about the AFH approach being burdensome an d duplicative were also outlined. The broad concerns coded as ambivalent comments were summarized by HUD in the following categories: (1) U nclear standards of review for the AFH Plans, (2) C oncern about the accuracy and reliability of HUD provided data, a nd (3) A request to clarify the process and consequences for unaccepted AFHs. Several of these concerns overlap with comments on costs or resources, which expressed concern regarding HUD oversight and L ocal or S t ate responsibilities under the R ule. Upon review and summary of comment er concerns, the P reamble specifies the agency decisions to incorporate 26 major clarifications or changes into the Final Rule. These changes were coded utilizing excel (see Appendix B ). T he majority of the major changes ( 21 or 80.7%) were made in response to ambivalent comments seeking clarification . Of those changes, 13 ( 50 % of all changes ) were revisions or clarifications to define words or elements further or change one word for another. T hose changes included revisions to the following terms for clarity: from

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96 Definitions were added for the following terms: ile these changes relate to many of the ambivalent comments that provided suggestions or requested clarity, they also involved contentious and politicized areas of debate, as interviews later revealed. Other changes related to ambivalent comments could be categorized as those providing clarification around the Assessment of Fair Housing (AFH) process, requirements , and tool. , opportunities for collaboration on the AFH, and revise submission deadline and clarifications. While these changes are in response to many of the comments providing suggestions, questions, or request (coded as ambivalent), they also address many of the c oncerns surrounding cost, resources, and the capacity at grantee agencies. Several major changes (11) relate to comments of support and provide for strengthened mission based support, providing further resource s (5), or changing the status quo (1) . First, the Final Rule recognizes comments submitted in support of changing the status quo by clarifying that areas of opportunities and investment in racially or ethnically conce ntrated areas of poverty. As the agency states , the Final Rule : fair housing section of the rule affirma tively furthering fair hou Also, HUD has created a new provision listing goals and priorities a program participant may take to affirmatively further fair housing, which may include, but are not limited to, place based solutions and options to increase mobility for protected 2015, p. 42277).

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97 Since the summary of this major change commits HUD to providing further resources, it was categorized into multiple categories . Some definitions changes or revisions a lso incorporated changes requested by advocacy groups to further support the mission of the Fair Housing Act . For instance, advocacy ; at the Final Rule was unequivocal in providing access and opportunity for people with disabilities . O ther major change s made based on comments supporting the Proposed Rule relate to the support based on resources. These comments clarify when HUD may not accept an AFH and For example , one change emphasizes that HUD acceptance of the AFH only relates to the administration of HUD program fundin g and does not necessarily mean that the grantee has complied with all obligations under the Fair Housing Act. The Final Rule was also amended to add a certification provision requiring program participants and grantees to take on the responsibility to cer tify compliance with affirmatively furthering fair housing, while also providing for these certifications to be challenged by the public under the existing regulatory framework. These modifications deny the arguments in opposition to the Proposed Rule on t he basis of cost, which argued that the new process should provide a safe harbor to grantees against future litigation or obligations. Some changes did acknowledge opposition based on arguments of federal government overreach requesting more local cont rol or cost and limited resources. Two comments addressed the overreach arguments, placing the onus of identification of fair housing priorities and the determination of when a fair housing plan revision is required back on the local

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98 communities or juris dictions. However, both of those changes also provide further guidance on how such analysis should occur and in allowing a mechanism for HUD to intervene and require revisions to an AFH, respectively. Six changes appear to be in direct response to argument s in opposition to the Proposed Rule based on the cost or limited resources or capacity of the grantees. Of these, four comments were related to clarifications on the AFH tool and eater streamlining for small agencies, and the final change related to flexibility in determining when a revision to the AFH was required. Despite the myriad public participation expressing opposition to the rule, no changes directly relate to the argumen ts in opposition to the proposed rule on the basis of maintaining the status quo. Those comments that were overtly racist or offensive were not addressed via any major changes. W hile acknowledging the overreach and cost concerns, the changes also considere d the call for greater resources, oversight, and mission based support and took a balanced approach. While giving some greater flexibility or guidance in terms of cost and local control, most major changes also included enforcement mechanisms based on supp ortive comments from major advocacy groups. Appendix B outlines the qualitative data analysis of all 26 major changes further, as they relate to public participation and commenter arguments. Table 4.6 below summarizes the degree to which the changes addres sed each of these concerns. Table 4.6. Final Rule Changes and Responsiveness to Public Comments Commenter Concern Number of Statements Percentage of Major Changes Devoted to Concern Support: Mission 10 38.26% Support: Resources 5 19.23% Support: Change Status Quo 1 3.85% Oppose: Overreach 2 7.69% Oppose: Cost 6 23.08% Oppose: Change Status Quo 0 0%

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99 Table 4.6 Commenter Concern Number of Statements Percentage of Major Changes Devoted to Concern Ambivalent: AFH Tool Clarification 8 30.77% Ambivalent: Definition Clarifica t ion 13 50% Table 4. 7 summarizes the results of the formal rulemaking research and analysis, tying together these three sections. These results allow the researcher to assess the degree to which formal rulemaking processes may lead to social equity. The majority of changes to the Final Rule provided clarifications and responses to issues and questions raised by commenters about the Assessment of Fair Housing (AFH) Tool or definitional clarifications. Many changes also acknowledged the mission of the Fair Housing Act and need fo r enhanced resources. The agency also acknowledged and addressed concerns of increased cost and limited capacity in the Final Rule substantive changes. This analysis provides insight on how the formal rulemaking procedures could enhance social equity, but only through also acknowledging and addressing concerns of efficiency. Additionally, the agency ignored and did not address those comments that were antithetical to the mission of the Fair Housing Act to achieve social equity. Table 4.7. F ormal Rulemaking Findings Public Participation Comments Outputs Substantive Changes Advocacy Organizations High Support (Resource based) Low Opposition Additional Mission based and Resource based changes Governments High Opposition (Cost based) Low Support Changes weighed and considered costs and overreach in terms of efficiency, effectiveness Industry Groups High Opposition (Status Quo) Low Support Allowance for "balanced approach" and investment in segregated high poverty areas Individuals High Opposition (Status Quo) Low Moderate Support Acknowledgment of opposition on the basis of "social engineering" but no substantive changes

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100 Taken together, the results of these three sections shed light on the first research about how formal processes of rulemaking might lead to social equity. These sections outline the formal steps under the Administrative Procedure Act (APA) including notice and comment periods and agency publication of Proposed and Final Rules. To answer the research question, we must understand and identify who participates, how they participate, and the extent to which the agency takes this participation into account to in corporate substantive changes into the Final Rule. Interview Results While the APA seeks to make agency decisions in the rulemaking process transparent and publicly available, there are still many aspects of the rulemaking process that are behind the scenes. To examine the informal aspects of rulemaking and better understand the internal processes impacting the formal rulemaking procedures , interviews were conducted with public officials involved in the process from the planning stages to th e Final Rule publication and beyond . This section reports the results to answer the second research question: T o what extent might informal rulemaking processes enhance social equity? Interview solicitation began through introductions from colleague s and c ontinued through the snowball method. Where possible, those interviewed provided contact information or made introductions to their colleagues for additional interviews. At the point that interview participants began to name those already interviewed as th e most crucial players involved in the rulemaking process, it was determined that a substantive , purposive sample had been reached. Interview solicitation was conducted via email to seven officials, five (N=5) of which participated for a 71.45% response rate . Nine additional names were received via the snowball solicitation. Of those nine, one had passed away, four had either retired or left the agency and could not be located, and the remaining five played similar roles in the same offices as those who were

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101 interviewed. For these nine individuals, contact information could not be located and introductions or solicitations were not able to be made. With each interview, the consent form was reviewed, and verbal consent was garnered. The interviews took place in July and August 2018 about events that occurred beginning in 2009 , specific to their involvement in the rulemaking and AFFH process. As questions involved substantive changes and outputs in the Final Rule, interview participants were directed to the preamble of the Final Rule which outlined key changes to jog their memories. Dates and publicly available documents were also provided for clarity or memory, where needed. The offic ials interviewed included individuals who worked in various program offices within HUD throughout their tenure . Several interview participants worked in the programmatic offices that provide oversight, technical assistance, and funding directly to those grantees that have direct responsibility for fair housing planning; the two primary offices were the Office of Community Planning and Development (CPD ) and the Office of Public and Indian Housing (PIH) . One person Office of Fair Housing and Equal Opportunity (FHEO) . One interview participant worked directly with the Office of the General Counsel (OGC) . Another interview participant worked in the o ffice of Policy Development and Research ( PD&R), a neutral convener of the rulemaking committee and the office responsible for the resources and data tool elements within the AFFH. It is worth noting that several interviewees moved offices throughout the rulemaking process. For instance, one offic ial began in the Office of Sustainable Housing and Communities (O S H C ) on early implementation of the AFFH Demonstration and was later moved to FHEO to lead the AFFH effort in recent years . ( Since OS H C was an office created under the Obama

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102 Administration in partnership with Department of Transportation and the Environmental Protection Agency (EPA) , this office was reorganized under the Trump Administration to be absorbed under the Office of Community P lanning and Development ( CPD ) and all staff were reassigned there or elsewhere . ) Another individual who spearheaded the rulemaking process began with Policy Development and Research ( PD&R ) and was moved to the Secretarial staff as political appointees shif ted . Three of the officials interviewed were career public servants, while two were appointed under special political posts during the Obama Administration. Only one of the five interviewees still work at HUD, and one other individual continues to work wit h the f ederal g overnment at a different agency. Titles or other identifying information are not provided, in line with procedures outlined in the Consent to ensure anonymity . The interview participants involvement in the rulemaking process varied from the early stages p rior to the drafting of the Proposed Rule to the final stages of the Final Rule publication and later publications of the Assessment of Fair Housing (AFH) Tools, an integral part of the Final Rule requiring further implementation under the Pa perwork Reduction Act. The results outline common insights surrounding the precedents and key considerations at each stage of rulemaking, including which processes led to the most substantive changes in the Final Rule outcomes and the most substantive publ ic participation. These interviews provided insight into the internal agency processes and bureaucratic discretion during the informal stages of rulemaking. Table 4.8 below summarizes the results of the analysis of the informal processes and major themes noted by the interview participants at each stage of the rulemaking process. The first section outlines key findings of the precedents and considerations pri or to the publication of the Proposed Rule. The second table section outlines the considerations and themes of agency

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103 of public comments. Examples of each area a re provided in the table and further outlined below. Table 4.8. Informal Rulemaking Findings Internal Agency Deliberation Key Findings Examples Pre Rulemaking Precedents and Consideration Findings of Internal Reports and External Investigations GAO Report (2010) HUD Needs to Enhance its Requirements and Oversight of Jurisdictions' Fair Housing Planning ; PD&R Report (2009) on a sample of jurisdiction's Analysis of Impediments Fair Housing Litigation & Judicial Signals Westchester vs. HUD (2015) Thompson v. HUD (2000) Political Will & Bureaucratic Discretion Early priority of Administration appointees Sec. Donovan's data driven process Dep. Sec. Simm's own life experiences and mission Mid term elections and appointee changes Stakeholder Input & Demand Informal listening sessions to engage advocacy groups with Political Principal staff Internal Agency Dynamics Fair Housing Office enforcement mentality vs. Program Office recognition of grantees' limited capacity and good intent; Need for a neutral convener (PD&R) Considerations from Proposed to Final Rulemaking Internal Agency Dynamics Internal debates over efficiency vs. equity; Neutral convener and committee arrangement as integral to success Political Will & Bureaucratic Discretion Personnel and appointee changes in key positions OMB and White House influence through the Inter Agency clearance process Judicial Signals TX Department of Housing and Community Affairs v. The Inclusive Communities Project (2015) Choice of Administrative Procedural Tools Moving AFH Tool into sub regulatory Paperwork Reduction Act Recognition of the limits to substantive participation in formal notice and comment

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104 First, interview participants were asked about key considerations and precedents that prompted the rulemaking action before the drafting of the Proposed Rule . Their responses mentioned several common factors: T he Government Accountability Office (GAO) and internal reports, fair housing litigation, pol itical motivations, and longstanding desire from key stakeholders for clarity or stronger enforcement. Every person interviewed mentioned the 2010 GAO Report to C ongress, Housing and Community Grants: HUD Needs to Enhance its Requirements and Oversight of There were four major recommendations in this report surrounding the current Analysis of Impediments (AI) process: (1) F acilitate the AI process, (2) E stablish grantee standards for updating their AIs, (3) E nsure AIs were an effective tool to identify and address impedi ments to fair housing, and (4) R equire submission and review of AIs on a regular basis. Each of these recommendations was closed through the publication of the Proposed AFFH Rule in July 2013. This precedent and motivation for rulemaking was also clearly outlined in the Proposed and Final Rule preamble . While the GAO report publicized this issue, interviewees also expressed t he internal knowledge of the problem at HUD prior to that report. Every interviewee mentioned the internal HUD revie w by PD&R in 2009 , which looked at a sample of AIs. PD&R found that a significant percentage of grantees and jurisdictions could not even l ocate their AI. Of those that could locate them, they varied in quality, evidence, and data and were not often used as clear, guiding standards in fair housing planning. Some AIs were also 10 to 15 years old and none were regularly submitted to, or reviewe d by, HUD. housing litigation as well. Two major litigation cases played a motivating role: City of

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105 Westchester vs. HUD (2 nd Cir. 2015) and Thompson v. HUD (328 F. Supp 2d, D. Md., 2005) . Westchester was a longstanding lawsuit and settlement in Westchester County, New York, which As one official stated: with Westchester, which I also worked on really closely, and that took a lot of energy within the agency just managing that settlement and litigation and I think [it was] something everyone was hoping we could avoid in the future. And basically, what hap pened there was that you had a county that had been submitting their annual action plans to HUD year after year and certifying that they were affirmatively AI that you HUD, [ or ] HUD never really reviewed it. And that , in fact , was ordinary course of business The other thing that happened there was, when we got to the settlement and g to HUD to review and approve the AI and look at what was acceptable, In both Westchester and Thompson , HUD was scrutinized for essentially allowing those communities to concentrate low income housing in racially and ethnically concentrated areas of poverty, thus further reinforcing patterns of segregation and denying people of color access to areas of opp ortunity. The timing of Westchester seemed to have created a key precedent and motivation for the rulemaking . Additionally, two interviewees mentioned Thompson despite the similar concerns and findings revealed in each. The official who spearheaded the e ffort summarized the interplay between litigation and concerns about the AI as follows: which is called the AI which the Assessment of Fair Housing [AFH] replaces with the new rule. And a lot of cities or counties basically just hired a consultant, right? And they would send them into HUD, but there was no formal requirement or review process. And so often these plans just sat on a shelf, unused. Unless you had an advocacy group filing a la wsuit, this just really was toothless, right?

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106 Thus, the concerns regarding the AI and its tangible impact on achieving the outcomes set forth in the Fair Housing Act and requirements of local jurisdiction came to the fore only via litigation, typically from fair housing advocacy groups. E very interviewee mentioned some form of political motivations, ranging from the personal life experiences of key political appointees to the longstanding desire for some form of insight surrounding the discretion and motivations of key players and individual s was data driven processes, similar to a process modelled after CompStat reviews, which is a mana gement tool adopted by many law enforcement agencies. One interviewee mentioned the life experiences of Deputy Secretary Ron Sims, who served at HUD from May 2009 through June 2011, as a mission based influence on the decision to undertake rulemaking: S o, WA] around racial equity and how local and regional governments played a role in racial equity. And , his torically white, exclusionary suburbs along to build affordable housing, so this was something that was really core to the experience he had brought. And he just spoke about the work of HUD in terms of racial equity. So, if you just google his speeches aro und 2011, like everything he was about, you know and every health outcome and life achievement we can now predict by zip code So, I think AFFH in some ways, grew out of his laser focus on those sorts of issues, and what are the tools that HUD has to address the This same individual also emphasized the neutral competence and commitment of key public servants in seeing the AFFH through to completion , rather than injecting personal opinions into the process .

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107 The interview participants also provided insights into the informal mechanisms at play during the drafting of the Proposed Rule . The drafting primarily took place outside of the formal notice and comment processes of rulemaking, and it was legally structured and constrained by the APA and requirements under OMB. The process involved internal HUD convenings of diverse program offices and interests, early surve ying of stakeholders and public convenings permitted within the bounds of administrative law , and eventual closed door drafting of the Proposed Rule. The internal agency politics were a challenge every official mentioned. Each of the key individuals als o had different opinions and experiences, both personal and programmatic: [There are] program areas within HUD who operate and serve outside entities, like local governments, who operate in a real model of scarcity. And so, you have these really, really l everyone in their own way thinking about low income people of color, who most peo these really restricted programs and these really limited dollars. That really turned a lot of it into us against them, between departments, between individuals, political l eaders. These tensions recognize that most policymakers and public servants had similar aims, but diverse perspectives a bout the best way to achieve those aims and serve the programs and people that HUD dollars assisted. Initial efforts failed, according to the official who eventually spearheaded the committee that saw the Proposed and Final Rule through to completion and publication. The interviewee The Secretary started saying we are going to make this rule. He had two or three versions where he just had senior advisors and Special Assistants sit in a room and he relied on a

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108 Throughout the drafting of the Proposed and Final Rule, internal agency politics was one of the primary challenges. As an interviewee stated: socioeconomic status, all the protected classes make any sense. You have PIH [and] CPD designed to, by and large, trust the grantees or the housing authorities, and get the mo ney out to them. And then you have FHEO which is kind of like our mini own Department of Justice, and they are enforcement oriented. And HUD has a history of those branches not working well together, right? Where CPD staff will complain, we had everythin g going, we invited FHEO, and FHEO a year later came in and like went after our grantee and took the money back. And then long history of HUD and some siloed dysfunction, where the program offices are actually This challenge arose early and often throughout the process, as key players expressed their competing aims and priorities, arguing for a position that best represented the concerns of their respective offices. Moreover, there was a degree of mutual distrus t built up over decades of siloed implementation where these offices often worked at cross purposes. To address this friction, in January of 2011, the Assistant Secretary of PD&R , Raphael Bostic , was selected to spearhead a broader coalition and committe e from all program offices to get to a published Proposed Rule. Assistant Secretary Bostic previously worked on the Thompson litigation and was a relatively neutral convener within HUD . H e was not from a program office such as CPD or PIH that saw themselve s as representing the interests of their program grantees nor was he from the more enforcement minded FHEO office. As an interviewee who was not in PD&R noted: through a num then it was with OGC. And ultimately, it landed with Raphael Bostic (Assistant pardon the metaphor dog in the fight. He

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109 might have. And there was just there were a lot of a battles. It was a sticky process to say the lea Despite this neutral convener, the different program offices, fair housing, and OGC all had to reach agreements, which were often complex and structured to serve different purposes that may be in tension with one another. With th e new leadership and restarted process in 2011 after the several failed attempts at to i mprove fair housing planning . Interviewees emphasized how this approach was very different from typical HUD practices: your communities and the tools you have and the programs that This comme nter spoke about how important that early input was to inform the eventual drafting of the rule. The consultant and senior leadership team met with jurisdictions, PHAs, and grantees in different parts of the country to determine what they were looking for in terms of fair housing planning guidance and bring that input back to policymakers at HUD. ns on the back and forth you can do during the rulemaking process. At some point, you close the door and by the tensions and internal agency dynamics that led to committee convener. All interviewees mentioned this tension in some form or another and the difficulty in convening these program offices between FHEO and the program staff, or between the General

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110 Counsel and other HUD progr am offices. From the PIH side, there was resentment that the Office of Housing those programs under the Federal Housing Administration [FHA] , which supported multifamily and singl e family affordable housing through mortgage insurance was not at the tab le. Moreover, the PIH program office was undergoing a time of deregulation, linked to the congressional funding levels under Sequestration, and the analysts sent to committee did not have the involvement or support of senior staff or political appointees i n their program offices. As an official stated: I will tell you this : institutional PIH was 100% against [the AFFH Proposed were cutting Capital Funds, we were pulling back Admin Fees for vouchers. Because demonst ration granting PHA fungibility and program flexibility] and a deregulation culture was going on and this went counter to it, so at the Deputy Assistant Secretary in send any Assistant Secretary to the table. We were analysts, you know, we were high performing ones, but it shows you the level they felt [this rulemaking belonged]. Fa ir Housing had an assistant secretary there, CPD had senior staff and Deputy Assistant Regardless of these internal battles and dynamics between different program offices, the draft Proposed Rule was completed in 2012. In 2012 after reaching a consensus and full draft of the Proposed Rule, there were further political delays at the time du e to the presidential elections. Interviewees who were highly involved with the process noted how OMB shut down all rulemaking and Federal Register notifications around any major potential political changes and election s . The sense of accomplishment in get ting a Proposed Rule through OIRA and OMB review and ready to release in 2012 was squashed when one specific political campaign ad attacked President Obama and the

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111 White House took a closer look at everything on the proposed roster. As one public official candidly describes: it through OIRA, so they did the whole regulatory review. We were about to put it out for proposed rulemaking, which you know triggers the clock, and you get the comments, and you address the comments, and you get to the Final Rule, and, unfortunately, what happened is this is now about July, maybe three or four months before the election for the second term there was a TANF [Temporary Assistance f or Needy Families] issue in Massachusetts that blew up. [A Political Action Committee (PAC)] released a commercial the week we had scheduled to release the AFFH Rule in proposed rulemaking and the White House and the campaign basically took a 360 degree lo ok at misinterpreting this [TANF issue] prop Agency officials described this disappointment and actions taken internally in response. The leader of the committee on drafting the AFFH pro posed rule began to determine a Plan B in case the Obama Administration was not reelected. This plan entailed salvaging some of the data tools and fair housing planning tools that were in draft format. Further, the working group discussed what sort of guid ance could be issued under existing regulations to assist grantees in fair housing planning and the AI process. When President Obama was reelected in 2012, the working group planned to push out the Proposed Rule immediately . However, shifts in some senior political leadership entailed what the green light by previous leadership. The Proposed Rule was eventually published in July 2013, a year after it was initi ally ready to be published through OMB. Interviewees also shed light on the internal agency processes which led to the most substantive changes between the Proposed and Final Rule. Every person interviewed mentioned the process of convening the committee as a major factor in the final outcomes. Multiple people

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112 also mentioned the long discussions and changes to hard to define terms such as opportunity, segregation, and integration as reflective of the major changes. One official brought up the OMB processes and inter agency federal comments as being instrumental in the outcomes of the Final Rule. Several interviewees again mentioned the personnel changes and political inclinations of new leadership as a significant influence in the outcome. Finally, most off icials also mentioned putting the AFH tool itself into a different sub regulatory or post rulemaking phase as an important result of these informal agency processes and discretionary decisions. Most interviewees mentioned the committee process and the rol e of PD&R as a neutral data driven convener as key to the informal, internal rulemaking framework. Some went so far as to mention a key HUD catch the Rental Assistance Demonstration (RAD) that also utilized a similar framework in collaborating across siloed program offices. These officials noted the painstaking process of being in a room together with many individuals representing different program offices, different opinions, and strongly held beliefs as integral to reaching the final outcomes and incorporating major changes. These internal debates often centered around amorphous, but contentious terms and questions. Those questions involved how HUD, as an agency, would define areas of opportunity or terms like integration and segregation. As one official noted, me disagreements over were we going to o far . H ow do we use agency data to define opportunity? Can you define opportunity? Is it defensible in court? Is it challenged? It was a real hang pushed [the Final Rule] through, we were still a little uncomfortable that we were defining opportunity as these things, and I think we left the change in the language of

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113 These in ternal discussions and debates arose from the most highly charged and hotly debated issues between program offices serving grantees and FHEO and OGC, offices which were primarily concerned with civil rights enforcement and legal compliance. These consequ ential discussions around definitions extended beyond HUD as well, outside of the internal HUD processes at the federal level. These debates took place at the White House or OMB level. OMB circulates drafts of the Proposed and Final Rules to other agencies and White House policymakers for concurrence and comments. The comments that were returned to HUD from the Department of Justice, with its civil rights enforcement role, were very influential in supporting the arguments of FHEO for stronger enforcement me chanisms. Moreover, those comments fostered some internal strife and mistrust, as the PIH official noted: [of comments from OMB] , one from all the agencies and one from the Department of Justice. And specifically, the DOJ Civ il Rights Division, who basically went counter to everything that everybody else had written about it. And, Housing Office. When we got those back, I mean, it really drove a wedge because it felt like, if you looked at those comments, you knew that basically every issue Fair Housing had lost internal to HUD, every policy decision they had lost at the Secretary level, was basically in those comments. And it was like, okay, who we were all supposed to jump off the bridge together and hold hands once this left the building who went over behind T he tensions between federal administrators who oversaw grantees and th ose who enforced civil rights law played out beyond the confines of HUD programmatic silos. These agency and DOJ comments were further incorporated into the final draft and outcomes. New political leadership also changed the tenor of the internal agency discussions and decision making. Whereas Secretary Donovan was very data driven and tended to assume good intentions of housing and community actors, the new HUD Secretary Julian Castro held opinions that were influenced by his time in local Texas politics. Officials believed that Secretary Castro was more prone to believe that not all actors were well intentioned. This led him to be more open

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114 to the FHEO and DOJ Civil Rights Division ar guments for stronger enforcement mechanisms, in essence reversing some earlier decisions in the rulemaking process. As one official noted, Texas where you have a lot of bad actors and people who actively discriminate. And so, it was interesting in rulemaking to see him switch the policy barometer a little bit more towards to g phases and internal negotiation of the Final Rule would have led to a better outcome by incorporating the AFH Tool into regulations. The flip side of this argument was made by a CPD official, who asserted that having the AFH Tool and process at the sub regulatory level provided some benefit. While the AFFH Final Rule outlined general requirements of program grantees, the assessment tool (AFH) itself was not outlined in regulations. Officials asserted that part of this decision was strategic to allow flexibility would allow the regulations to remain while specific guidance i ncorporated technical changes. Moreover, pushing the assessment tool outside of the rulemaking process allowed for stakeholder engagement in the process to make the assessments more usable and meaningful. This substantive outcome ties to the final area of input from the interviews: P ublic participation and citizen engagement. O fficials interviewed discussed the types and forms of public participation that they believe impacted the final outcomes of the Proposed Rule most significantly and substantively . After the initial listening tour by senior leadership and consultant groups, public participation was restricted and limited to th e public notice dictated by the APA and OMB. As all interviewees noted, all public participation was strict ly monitored for legal

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115 compliance. One official recalled how a ny meetings with outside groups has to be formally hosted through OMB, OIRA, and the White House per the guidelines of Executive Orders and the APA . S ome program offices such as PIH felt that participation and communication was lacking, which may reflect the general opposition to the rulemaking due to the perceived increase in regulatory burden for their PHA grantees in the proposed rule. However, C PD officials and other program offices noted that their senior leadership encouraged public participation through hosting calls and communications at each step to explain the process and encourage public comment, as allowed in notice and comment periods. However, formalized public participation via notice and comment periods may not have been sufficient to reach those most impacted by fair or unfair housing planning processes: the low income people of color who may not have access to areas of opportuni ties or investments in their own segregated neighborhoods. As one official noted, I mean, I think as the nature of the federal government and the way rulemaking work, a dministrative l aw about having these comments be submitted to and considering them that way. And certainly, that gets one kind like we got more knowledge of how people would react to these kinds of polic ies from the grantees than we did from the hypothetical fear mongering that all sides were giving r average resident who would see the most benefit or be affected by any of the policy really have no idea what it So, in the degree that we did get to the general public, it was probably thro ugh national networks of advocacy organizations that took the work on themselves to explain this to the public. But, you know, they have a different story about what their offices were trying to do. I know FHEO and CPD did countless calls with the stakehol ders trying to get together to try to explain what AFFH was and how it would be rolled out. So that, again, got to that This comment confirms previous sentiments that CPD and FHEO took efforts to educate and work with their stakeholders, whereas PIH demonstrated more resistance to the rulemaking effor t, which may have led to less substantive engagement with its programmatic stakeholders .

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116 Moreover, it demonstrates the pros and c ons of having to reach individuals through advocacy understood, by those that the rule would most personally and directly impact : low income individuals residing i n segregated neighborhoods . Rather, many individuals heard about the rule direction for local fair housing planning and federal oversight. The CPD official noted how th e most substantive public participation took place outside of and after the rulemaking process. The interview described how administrative law , through the Paperwork Reduction Act {PRA), was utilized to encourage public participation. Whereas the Fina l Rule laid out the general framework, the AFH tool itself was not outlined in the regulations. Thus, the AFH could then be tested and finalized with vast amounts of public participation through the PRA This interviewee noted: We most part, if you look at PRA, they require you to go out whenever you do a form that requires any input from the public, you have to go through this process that estimate s the burden hours and then you publish something in the F ederal R egister that says, hese are our estimates of burden hours, and if you want to comment at all on our estimate, If you look at most of those, nobody ever comments on them. We got hundreds of comments on ours. Partly because we were saying we really need input on this, so we are actually going to make an effort to use these notice periods ut to actually publish the forms on the website and stakeholders were aware they were going out and who for the most part, we worked for local government. So, it is really an important piece that we hear from those who are practicing in the real world

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117 The interview ee described the process of getting grantees into a room to walk through a test the draft AFH tools. These convenings would ask the grantees to try to answer questions, to attempt to utilize the data, and provide the agency with feedback on what would or w ould not practically. Analysis The results of Phases I and II are no w compared to the theoretical definitions of procedural and substantive equity to determine the extent to which formal and informal agency processes facilitated these outcomes. Table 3.2 provides a full operationalization of these terms, but for the purpose s of this analysis a summary is provided prior to each section to link the results to these theoretical frameworks. First, to what extent did the formal and informal rulemaking processes allow for procedural equity? This research defines procedural equity as : (1) C itizen engagement in the proces s (Murray & Hertko, 2011), (2) D ue process , including adherence to notice and comment requirements of the Administrative Procedure Act in the formal rulemaking process (Johnson, Johnson, & Svara, 2015; NAPA, 2005), and (3) A gency acknowledgement and responsiveness to commenters in the Final Rule (Regens & Rycroft, 1986). Citizen engagement in the process, particularly engagement of historically marginalized groups that might be most positively impacted by the rule, seemed to be lacking . This was omments and in Phase II this shortcoming w as acknowledged by some agency officials. While engagement did involve outreach to grantees such as states, localitie s, or PHAs, and stakeholders such as fair housing advocacy groups, there were challenges in reaching marginalized individuals. The data reveal that only 14% of individual comments submitted showed support for the Proposed Rule, whereas almost a third oppos ed the rule and appeared to be from individuals in positions of privilege with

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118 concerns about protecting the status quo. As one interviewee asserted, the wonky legalese was inaccessible to the people who might be most positively impacted by the rule . F am ilies and individuals confronting pover ty or discrimination did not likely have the time or resources to invest in reviewing byzantine government regulations online . Where there were noted successes in citizen engagement, those took place prior to or afte r official rulemaking. As interviewees noted, the listening tour informing the drafting of the Proposed Rule was successful in engaging grantees. Additional substantive engagement took place with state or local governments and PHAs through the Paperwork Re duction Act process and testing of the AFH templates outside of the rulemaking process . Finally, most of the concerted outreach and engagement was conducted through advocacy groups or calls to inform stakeholders of the Federal Register process and encourag e formal comments. This approach underscores the emphasis on due process or adherence to the APA. Both the document analysis in Phase I and the interviews in Phase II demonstrate how the agency strictly adhered to administrative law restrictions an d guidelines under the APA. It is noteworthy, however, that several agency officials expressed frustration with the formalized process es, which they viewed as contra ry to their other goals of citizen engagement and active outreach during the rulemaking its elf. The closed door meetings and the strong emphasis on legal requirements and analysis by the Office of General Counsel resulted in some policy and program staff frustration. The degree to which procedural equity is evident in the agency acknowledgement and responsiveness to comments is unclear. The agency acknowledged all types of comments and arguments in support or opposition to the AFFH Rule, but took more time acknowledging specific suggestions and requests for clarification than general support or o pposition. While the agency did address all categories of comments, the substantive changes in the Final Rule

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119 appeared weighted more in favor of those comments which expressed support and desire for stricter enforcement. Where the agency addressed concerns of cost or overreach, they also incorporated mechanisms for administrative oversight within HUD, which was a major push from fair housing advocacy groups. This observation segues neatly into a review of how the Proposed and Final Rule and the rulemaking process itself addressed substantive social equity. The results of both phases make apparent the degree to which the rulemaking itself was undertaken to address social equity, effectively enhancing substantive social equity, on two dimensions. These major components of substantive equity were examined as they were apparent in formal and informal processes of AFFH rulemaking : (1) Recognition of Disparities. This includes an emphasis on disparities and differences in outcomes ; recognition of policies, programs, o historic role in creating or reinforcing disparities; acknowledgement of adverse impacts; and recognition of structural, historical, political, social, or economic barriers to equity; and (2) Outcomes and Quality Measures. This includes an em phasis on meaningful participation and involvement of citizens, especially for marginalized groups; proposals that benefit historically marginalized and disadvantaged populations; and accountability, reporting, or quality control mechanisms to ensure equit able outcomes. These two metrics of substantive social equity are often closely linked and utilized to support and enhance one another in the rulemaking process .

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120 For instance, in the Proposed Rule, the agency makes a statement recognizing the disparity in outcomes and failure of past policies and practices: program participants, civil rights advocates, the GAO, and others, the fair housing elements of current housing and community development planning are not as effective as they could be, do not incorporate leading innovations in sound planning practice, and do not sufficiently promote The Proposed Rule then immediate ly pivots to address how it proposes to enhance accountability and control measures to ensure more equitable outcomes: addresses these issues and strengthens AFFH implementation. It does so by providing data to program pa rticipants related to fair housing planning, clarifying the goals of the AFFH process, Thus, one dimension of substantive equity recognition o f disparities provides a justification, logic, and reasoned basis for the enhancements in the outcome and quality control measures proposed by the rulemaking. It is essential to acknowledge that the Proposed Rule and rulemaking actions on AFFH were unde rtaken with substantive social equity in mind . This likely explains the outcomes in the Final Rule that appeared to favor the arguments supporting the proposal on the basis of its mission or changing the status quo . The opening line summarizing the agency action acknowledges how outcomes and quality metrics of social equity are the key objective of this effective means to affirmatively further the purposes and policie s of the Fair Housing Act, which The AFFH was a rulemaking action centered around the outcomes and quality metrics of social equity.

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121 Rulemaking through the formal process and Federal Register noti ces were not as transparent in the recognition of disparities. The Proposed Rule implicitly concede s housing disparities exist and acknowledges their pernicious consequences . However, the agency is careful to not plac e blame upon any specific locality , jur isdiction, or grantee . Rather, the Proposed Rule states that each grantee can evaluate HUD provided data on any disparities to: depth evaluation for their area of patterns of integration and segregation, disparities in access to community as sets by members of protected classes, racial and ethnic concentrations of poverty, and disproportionate housing needs based on protected class; identify AFFH primarily outlines the outcomes and quality metrics that will be utilized or enhanced under the new framework ineffective monitoring, or planning practices that were not data driven . While HUD utilizes arguments related to the recog nition of disparities, it does so in a general manner which more broadly acknowledges that more could be done by the agency and its program participants to further fair housing. During p ublic participation phases of the notice and comment period, commente rs also often acknowledged the disparities or the need to enhance outcome and quality metrics in fair housing planning. Advocacy groups made the case for recognition of disparities most vehemently. Their comments were incorporated into Final Rule changes w hich reaffirmed how the agency might ensure quality metrics and outcomes with enhanced oversight and enforcement. Even the government and industry groups tended to preface their comments with some modicum of support for the substantive equity aims of the P roposed Rule. These comments might refer to a shared desire to enhance equitable outcomes or to a recognition that the current fair housing

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122 planning processes were often ambivalent and lacked clear guidance. Agency responses to these comments aimed to prov ide greater clarity on the metrics or further resources for achieving desired and equitable outcomes. Meanwhile, the agency did not respond to comments that were only antithetical to the AFFH purpose, such as those seeking to uphold the status quo. Interv iews with officials reveals a more nuanced and explicit recognition of disparities internally . Key precedents such as the Westchester and Thompson Federal court cases brought to light lax oversight of fair housing planning and how such shortcomings reinforced and allowed for racial and ethnic disparities and differences in outcomes. Policymakers seemed to understand and acknowledge their role in the historical and structural barriers to equity that created and reinforce adv erse impacts for low income communities of color many of them hoped to serve at HUD. Additionally, interviews revealed the extent to which personal lived experiences of the political appointees and final decisionmakers influenced outcomes. For those indivi duals, such as Deputy Secretary Ron Sims who had seen firsthand the structural, political, and economic barriers to equity in his community, the AFFH efforts were particularly poignant . For Secretary Donovan, using a data driven approach to measure and def ine opportunity and achieve equity was key. For Secretary Castro, his experience with some bad actors in Texas housing and development communities led him to lean more heavily towards enforcement. These results do not imply that public servants unjustly pu t their own biases above the agency mission. Rather, they demonstrate how perceptions and experiences of equity are inextricably tied to Drawing together findings from the formal and informal a spects of rulemaking, Table 4.9 summarizes the sequential processes of rulemaking under AFFH, the main inputs at each stage, and the outputs of the phases as those relate to metrics of social equity.

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123 Table 4.9. Overall Rulemaking Findings, Inputs, and Outp uts Process Stage of Rulemaking Inputs Output Informal 1. Internal Agency Deliberation (Pre Rulemaking) Findings of Internal Reports and External Investigations 2. Publication of Proposed Rule Fair Housing Litigation & Judicial Signals Political Will & Bureaucratic Discretion Stakeholder Input & Demand Internal Agency Dynamics Process Stage of Rulemaking Inputs Output Formal 2. Publication of Draft Rule, triggering: Formal Comments from: Comments Expressing: 3. Public Notice and Comment Period Advocacy Organizations High Support (Resource based) Low Opposition Governments High Opposition (Cost based) Low Support Industry Groups High Opposition (Status Quo) Low Support Individuals High Opposition (Status Quo) Low Moderate Support Informal 4. Internal Agency Deliberation Political Will & Bureaucratic Discretion 5. Publication of Final Rule Internal Agency Dynamics Choice of Administrative Procedural Tools Formal 5. Publication of Final Rule Additional Mission based and Resource based changes Changes weighed and considered costs and overreach in terms of efficiency, effectiveness Allowance for "balanced approach" and investment in segregated high poverty areas Acknowledgment of opposition on the basis of "social engineering" but no substantive changes

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124 CHAPTER V DISCUSSION AND CONCLUSION This research examines the following questions: How do redistributive agencies informally and formally address concerns of equity in the rulemaking process? To what extent do those processes lead to substantive social equity outcomes? First, social equity was defined along two dimensions: procedural and substantive. Upon a review of scholarship and literature two propositions were outlined: 1. Procedural equity, achieved through participation and agency responsiveness in the notice and comment period during formal rulemaking processes, may lead to outcomes that enhance substan tive equity. 2. Informal rulemaking functions may facilitate the exploration of issues and accommodations of diverse interests, which may enhance social equity. To examine these propositions further, the formal and informal processes were examined in two phases. The first phase o f research examined how formal rulemaking p rocesses address equity through an examination of the formal mechanisms of public participation under the Administrative Procedure Act (APA). The second phase examined the informal processes of rulemaking through interviews with key public officials. This chapter answers those research question and modifies the propositions in light of the results. The chapter also includes a discussion of how this research contributes to the rulemaking literature and theories of bureaucratic discretion and deliberative democrac y . Finally , the discussion considers social equity as a pillar for public administration within the context of the constitutional foundations of administrative law.

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125 First, to what extent do the formal processes of rulemaking address concerns of equity? The related proposition asserts that formal processes of rulemaking under the APA, including the notice and comment period , may allow for citizen participation and increase procedural equity . This procedural equity may , in turn , lead to enhanced substantive social equity in the Final Rule. This research demonstrates that formal processes may not always lead to procedural equity and the foundational premise of this proposition should be reevaluated . While the due process provisions of the APA were strictly followed in rulemaking for the AFFH, the commenter responses indicate that public participation is uneven across sectors and potentially not represent ative of all groups, undermining one of the key purposes of the APA (Rosenbloom, 2000). This uneven participation is evident in the lack of comments from individuals and communities who would benefit most from enhanced equity in affirmatively furthering fair housing . Groups seem to participate in predictable ways . For instance, government and industry groups lobbied for changes due to perceived overreach and increased cost , while advocacy organizations lobbied for stricter enforcement and a change to the status quo. T h e participation of citizens on an individual level, was robust but highly uneven. Of the individuals that participated in the notice and comment period, the majority of those comment s reflected a position of relative advantage or privilege , as evidenced by comments arguing th eir advantage d lifestyles or well off neighborhoods might be threatened by the proposed changes for enhanced equity. Many of those comments also reflected some of the media fear mongering or conspiracy theories or explicit racist sentiments. F ewer individual citizens comments seemed to reflect a personal understanding of historical, social, political, or economic systems of structural inequity in fair housing.

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126 Given the patterns of public participation, it is unclear whether the formalized due process under the APA led to increases in substantive social equity outcomes. The agency did summarize and respond to all commenter concerns . S ome of those concerns by individual or other groups opposing the rule were not further addressed through any major changes ; however, substantive and responsive changes to such concerns would have led to less substantive social equity in the outcomes . For instance, many individuals made comments that supported the status quo and thei r own positions of privilege by accusing the agency of social engineering or citing conspiracy theories. These comments were summarized as opposition calling the rule social engineering, but no substantive changes could be directly linked to these argume nts. Alternatively, the Final Rule included substantive changes , which did allow for more local control or flexibility while also balancing those modifications to the rule by increasing the between the Proposed and Final Rule considered comments and public participation during the notice and comment period, the resultant increase in measures of substantive social equity A gency offic ials also expressed frustration with the codified rulemaking processes and legal restrictions under the APA. Rather than feeling that these processes allowed for diverse interests to be heard, program staff in the offices of Public and Indian Housing ( PIH ) and Community Planning and Development ( CPD ) , in particular, felt that formalizing input curtailed conversations and their own ability to dialogue with grantees and stakeholder groups. Likewise, those who were more concerned with enforcement and addressin g historic disparities were aware that individuals who might benefit most from this rule did not find the formal process of

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127 participation to be accessible or did not have the time, resources, or capacity to participate through the notice and comment period . To revisit the first proposition, a more accurate hypothesis might read: Formal rulemaking processes may not increase procedural equity, access, or participation evenly for all citizen and stakeholder groups. Moreover, contentious and complex policies m ay lead to substantive equity outputs when specific commenter concerns that may be antithetical to the mission of social equity are given less weight . Formalized rulemaking processes under the APA may not go far enough in reaching out to disadvantaged groups to provide substantive opportunities for understanding, participation, and input. Those who do comment often express fear or concern about how the rule would affect them, whether through higher administrative burdens, legal costs, or c ommunity changes. That form of participation did not lead to increases in substantive equity in the Final Rule; rather those concerns had to be addressed and balanced It i s noteworthy that , after the rulemaking process, formal processes under the Paperwork Reduction Act (PRA) and policymaking at the sub regulatory level were used to creatively and proactively engage citizen stakeholder groups. These processes were employed to demonstrate, test, and deploy the Assessment of Fair Housing (AFH) Tool for different groups, including states, localities, and PHAs. Thus, limits on procedural equity that were enshrined in the APA surrounding rulemaking processes were circumvented cre atively via the PRA. The benefit to the PRA approach was the achievement of procedural equity, which followed the due process requirements while also providing a venue for dialogue between diverse interests to achieve a workable, useful tool. The re is a si gnificant drawback to this approach : R esultant changes are more easily curtailed or delayed, whereas changes enshrined in regulations through rulemaking

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128 are more stable and enduring. This shortcoming and obstacle to equity outcomes is significant and is ou tlined in greater detail, in regard to its practical consequences, at the conclusion. The second proposition asserts that informal mechanisms in rulemaking may facilitate the exploration of issues and accommodations of diverse interests, which may enhance social equity. This research demonstrates support for this proposition. The research and interview data reveal that these informal processes encompass public engagement prior to the rulemaking process, internal agency dynamics and organizational management , and political and individual motivations. Moreover, the bureaucratic discretion and political leadership exercised within the agency served to guide the AFFH process toward balanced and equitable outcomes. The informal processes undertak en during pre rul emaking allowed the agency and its senior political leadership and consultant groups to engage with key stakeholders, including state and local governments, industry groups, and fair housing advocacy organization s . These engagements were unique in that they provided a venue and forum for dialogue and discussion of local problems and challenges, rather than the typical top down federal engagement to provide technical assistance or resources related to program compli ance. Most interviewees asserted that this process was integral to embark upon rulemaking and asserted that it was a significant departure from how the agency typically conducted its oversight and engagement. The second, and most cited, contributor to the rulemaking success and outcomes to promote greater social equity was the internal organizational process . The committee process addressed the historic dynamics of disjointed agency program offices that often worked in siloed isolation toward their own narr ow mission without regard to the overall agency goals . The several failed attempts at rulemaking prior to the publication of the Proposed Rule point to the challenges of reaching a consensus in a redistributive agency that contain offices that work at

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129 cros s purposes. While program offices viewed their role as providing oversight and technical assistance to their grantees that worked in an environment of scarcity, fair housing and legal departments were more focused on enforcement and compliance. The latter offices viewed the most egregious cases of fair housing noncompliance and discrimination in Westchester County and Baltimore as indicative of a widespread problem requiring more heavy handed enforcement. P rogram staff encountered diminishing funding an d resources and were grappling the demands of AFFH and fair housing enforcement in an era of deregulation. The exhaustive process of reaching consensus required an impartial convener, senior staff buy in, and a strong desire from political appointees and A dministration officials to push through these changes. Finally, a key behind the scenes precedent to this rulemaking was political will and administrative buy in at the most senior leadership levels . The guidance, directives, and goals of cabinet level off icials were integral to reaching the formal rulemaking stage of the AFFH. Moreover, the inclination of these individuals and their beliefs about the key determinants of inequality, housing discrimination, and neighborhood segregation, as well as beliefs ab out the motivations and intentions of fair housing actors , influenced the tenor of the Proposed and Final AFFH Rules. Political considerations and the political calendar also had to align for publication of the rule at each phase. New actors at high levels required re litigation of key issues and new directions in the rulemaking process. Meanwhile, midterms and presidential elections and campaigns influenced what the White House and OMB were willing to move into the formal phases and process of rulemaking. Revisiting the research questions and both propositio ns, it is apparent that no single determinant or even complex combination of precedents c ould predict equitable outcomes through agency rulemaking. Supporting findings from

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130 Civil Rights in HEW : neither constituency group pressures or comments , nor legal pressures, nor can fully explain the outputs in terms of substantive equity and rulemaking. Rather, all these factors must be considered together , along with internal agency dynamics and competing programmatic goals. Even then, the outcomes are highly dependent on the sp ecific context and history of complex structural issues and agency dynamics. Achieving equity and enforcing civil rights in a federal agency focused on redistributive goals po se s a unique challenge for administrators and agencies in terms of both rulemakin g functions as well as subsequent enforcement. Moreover, the informal processes, conversations, and organizational and political considerations seem to have a greater influence on whether equity outcomes can be achieved through rulemaking than does the for mal due process governed by the APA and notice and comment periods. Impacts f or Theory a nd Practice The theoretical and practical contributions are myriad. This section notes the contributions of this research to existing scholarship. It outlines where the findings support prior research and where they refute or complicate those findings. This study advance s the dialogue, knowledge, and scholarship on rulemaking, bureaucratic discretion, and deliberative democracy. Moreover, this research reaffirms the tension of holding equity as a pillar of public administration while also addressing efficiency and effectiveness in program implementation. Th is research has implications for policymakers at the federal, state, and local levels, for advocacy groups a nd coalitions, and for citizens. A foundational premise for this research is the assertion that rulemaking is an essential function of public administration. Without rulemaking, the implementation and execution of laws and statute would not be practical or achievable (Warren, 2004) . The investigation of the

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131 AFFH process affirms this assertion. From the Federal Register documents and comments to the interviews with officials and review of the historical context of fair housing, it is clear that rulemaking was a necessary part of the policy making process to effectively, efficiently, and equitably enforce the Fair Housing Act. Despite the passage of the Act over five decades ago, guidance on how state and local governments should conduct fair housing planning to meet their obligations under t he Fair Housing Act was ill defined, unhelpful, and inconsistent. From GAO reports to litigation in communities that were not fulfilling their obligations, it was evident that the F ederal government did not have clear guidance , nor did it ensure effective oversight of fair housing planning. Fair housing advocacy groups had a pent up demand for the agency to provide stronger enforcement of affirmatively furthering fair hou sing, and jurisdictions from State and Lo cal governments to P ublic Housing Authoritie s (P HAs ) were frustrated with a lack of clear policy direction on legal compliance . None of these actors, however, could address these concerns themselves, nor was Congress willing or able to provide further clarity. There was a need for the regulatory r ulemaking process directed by bureaucratic experts and political leadership within HUD. This research demonstrates that rulemaking is a non linear process, in which multiple internal and external factors influence action and timing . Th ese findings contradi ct e arly rulemaking scholarship which asserted that rulemaking occurred in sequential phases, triggered by legislative action. (2003) rulemaking theory that describes three key precedents for rulemaking: revision of obsolete rules, a petition from the public, and challenges through litigation. This study demonstrates that precedents for rulemaking action are not confined to these three boxes. While litigation including the Westchester and Thompson cases created two F ederal judicial standards, the research findings assert that the

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132 triggers for rulemaking were more complex than just litigation . This research confirms the findings of Kim and Gerber (2008), Shapiro (2005), and Shipan (2004), which assert that political will must precede action and that, in the case of AFFH under the Obama Administration, the democratic leadership did seem to have a stronger emphasis on issues of equity . Finally, t he research also supports that internal agency shocks may make some programs more salient and precede agency decisions to undergo rulemaking . In the case of the AFFH, these internal shocks included the GAO report and its internal PD&R investigation , which required agency response and action to address shortcomings. T his research adds to the existing scholarship on rulemaking by examining the process outside of regulatory agencies that prior studies use as their primar y context (e.g. Golden, 1998; Haeder & Yackee, 2015; Jewell & Bero, 2007; Levy & Franklin, 2013; Yackee & Yackee, 2006). finding that how commenters participate varies across different types of c ommenters. The results from this study affirm that individuals were more likely to utilize anecdotal evidence, whereas organizational stakeholder frame issues in terms of technical terms or costs and benefits (Levy & Franklin, 2013) . Although AFFH comments were less geared toward technical standards and costs were not as highly quantified as they were in the studies of regulatory industries (e.g. the trucking industry rulemaking; see Levy & Franklin , 2013) , the argument framing was similar in this redistributive policy. This may indicate that commenter narratives and framing techniques are analogous across agency and policy types. O ther findings from studies on regulatory agency rulemaking were not applicabl e in the case of the AFFH. Haeder and Yackee ( 2015 ), Golden ( 1998 ), and Jewell and Bero ( 2007) maintain the outsized influence of business or lobbyist groups in the rulemaking process, but this

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133 assertion does not hold in rulemaking for social policy where private industry has relatively little involvement. In rulemaking at redistributive agencies, the participation varies in that marginalized individuals those groups that would most stand to benefit from increased social equity were typically represent ed by advocacy organizations and did not participate in the rulemaking process. Rather than industry or business, organizations representing state, local, or quasi governmental organizations and grantees were involved in the process providing detailed comm ents on the costs of the proposed action . Despite this involvement and the ir myriad arguments for increased accountability and stronger mechanisms to ensure subs tantive equity. This finding runs contrary to assertions in regulatory agency rulemaking that advocacy groups or public interest organizations are less likely to effectively represent their interests and influence outcomes than the business or lobbying community (Haeder & Yackee, 2015; Golden, 1998; Jewell & Bero, 2007). The contradiction may be attributable to the fact that the AFFH rule itself was undertaken with substantive social equity outcomes in mind. As advocacy groups tended to share th at mission for more equitable outcomes with the Department, their comments appeared to be more influential in the Final Rule outcomes. This study also adds to rulemaking literature through an examination of the informal processes that West (2009) calls the The findings affirm that managerial and internal organizational processes heavily influenced the drafting of the rule. Without effective committees led by a fair convener to represent the competing interests of various program o ffices, agency officials assert th e AFFH Propose Rule may never have been published. In the case of the AFFH, it appears that the informal processes and early stages facilitated increased participation and was more inclusive than the later formalized notic e and -

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134 comment period. While the listening tour and consultation with grantees appeared to reach organized interests, rather than individual citizens, the formalized process of rulemaking under the APA also failed to effectively garner citizen participation , particularly from the groups that would be most positively impacted by the changes. The interview data suggest that the formalized process did not assure inclusiveness and transparency , as West (2009) suggests . Rather, the technical nature of the rule an d the formalized participation made it inaccessible to certain stakeholders, among them those citizens the rule aimed to provide with great er equity and increased opportunity . This research contradicts assertions from the principal agent framework, which proposes that C ongress directs and signals bureaucratic actions to immediately follow. Refuting findings of Terman (2015) and Wood and Watareman (1991), in this research, external political signals from legislators did not provide the basis for agency rulemaking. In the case of AFFH, The AFFH rulemaking process was undertaken decades after the initial Fair Housing Act, which conf irms understanding of the timing discretion that bureaucracies maintain. This study affirms the findings of Carpenter et al. (2011) that, despite C ies maintain control of the decisions surrounding timing of rulemaking actions. Theories of bureaucratic discretion recognize the work of public administrators as being grounded in constitutional foundations, public values, and separations of powers . Thi s research reaffirms the importance of framing rulemaking upon those theoretical foundations rather than on economic principal agent models. This research supports argument that bureaucratic discretion and action entails separation of p

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135 actions, through balancing managerial, legal, and political considerations. First, b ureaucratic actions under AFFH rulemaking required sound organizational management practices, including the neutral convening of committees representing diverse interests within the organization. The n, during rulemaking the agency had to also consider and weigh the legal authorit ies for such actions . This included the legal authority for rulemaking under the Fair Housing (FH) Act , j udicial and legal precedents such as the affirmation that disparate impact claims had standing under the FH Act, and agency adherence to administrative law guided by the APA. Finally , political considerations were necessary to push through this politicized and controversial rulemaking. The political dimensions of bureaucratic discretion included the guidance and buy in from a sympathetic and equity focused administration, internal agency political dynamics, and the successful navigation of external politica l events such as reelections, campaigns, and requests or input from the OMB or other cabinet level agencies. This research also finds that public servants and leaders support regime values in rulemaking and uphold d emocratic constitutional norms, the rule of law, and constitutional foundations through their actions (Newbold, 2010; Newbold & Rosenbloom, 2017 ; Rohr, 1986 ). steer the outcomes and direction of rulemaking actions, these inclinations do not necessarily run counter to regime values o r constitutional norms. Rather, the findings point to the worth of a representative bureaucracy that understands the experiences of the constituency they a re serving. This may be especially true in redistributive agencies concerned with social welfare and structural inequality. Bureaucrats play multiple roles, representing the polis they serve , bringing their own life experiences to bear on the priorities an d outcomes of rulemaking, while also balancing demands to enact policies and rules around legislative statute s (Cooper, 1983). Public

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136 servants can best serve their constituencies and uphold democratic constitutional norms as thoughtful arbiters of the rule making process. Their personal experiences can inform how they promote equitable outcomes in an amenable political environment. Moreover, the managerial and legal dimension of their work ensure that they convene and allow access to diverse interests and ci tizen stakeholders, even despite a history of siloed dysfunction. Deliberative democracy theories may also be informed by this research. Phase II research and interview results reveal that agencies do have the capacity to engage stakeholders , ensure discussion, deliberation, and educate grantees. This was apparent in the early engagement of stakeholders by senior leaders and consultants prior to th e initial drafting of the proposed rule. Through the creative use of the Paperwork Reduction Act (PRA) post rulemaking to educate jurisdictions and PHAs , the agency allowed for stakeholder engagement in the development of a workable and functional AFH Tool . The formal processes under the APA fell short of the optimal form of deliberative democracy, which would ensure an open, dynamic deliberation and inclusion of diverse values and demographics (Gutmann & Thompson, 2004; Young, 2000; Nabatchi, 2010). The s e findings support the th at there are barriers to achieving ideal type deliberative democracy: cost, resources, and obstacles to participation for marginalized groups (Irvin & Stansbury, 2004; Rydin & Pennington, 2000). The type of participation mandated i n the APA for rulemaking actions via the notice and comment period also affirms the scholarship of Nabatchi and Leighbinger (2015), which asserts thin participation may not be best suited for contentious and complex policy matters. Thin participation mec hanisms of online comment periods did allow individuals to express opinions, suggestions, and concerns, but it did not facilitate education of citizens around the need for these changes or complex causes of segregation and socioeconomic stratification .

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137 The individual comments contained misinformation and reflected fear mongering and conspiracy theories, which points to the gaps in engagement by the agency itself , a natural outcome of this type of thin participation. T he research also supports that equity is a vital, aspirational pillar of our constitutional democracy. The agency formal r ulemaking r esponse s revolved around striking a balanced approach to achieve equity while still recognizing the administrative demands of efficiency and effectivene ss. Interview data also reveal that the informal processes considered how to better segregation. Internally, the agency was acutely aware of the need to impr ove its requirements for and oversight of fair housing planning; the formal rulemaking externally also indicated the need to more efficiently and effectively affirmatively further fair housing. The study of this rulemaking process underscores the complexit y in balancing the tensions between equity, effectiveness, and efficiency in program implementation . The research also affirms th e degree to which pushback is encountered when the aim is equity and not simple , mathematical equality. As Dr. Martin Luther King, Jr., the civil rights activist whose assassination preceded the passage of the Fair Housing Act fifty years ago, presciently describe d : Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality , they agree, but should ask for nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man enters the starting line in a race three hundred years after ano ther man, the first would have to perform some incredible feat in order to catch up to his fellow runner. ( 1964, p. 121) The public participation in the formal rulemaking process points towards this resistance and fear that true equity may entail. To overcome these hurdles , several key precedents for successful rulemaking had to align as well, including successful management of the internal agency

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138 dynamics, political will and leadership, and legal foundations and precedents. Even with the co nducive political, managerial, and legal environment for rulemaking , public administrators had to make assurances and tradeoffs in the AFFH for enhanced local flexibilities, cost savings measures, and efficiencies. Finally, t his research has implications f or policymakers at the federal, state, and local levels, for advocacy groups and coalitions, and for citizens. First, ensuring that diverse interests and life experiences are represented by those in the administration allows for concerns of equity and marg inalized voices to be considered during policymaking. Public servants must balance managerial, legal, and political concerns while navigating complex and contentious policy issues. The tensions and barriers to implementing more effective and efficient poli cy around social equity must be addressed both internal to the agency and with external stakeholder and citizen groups with diverse, sometimes opposing, opinions. While the timing and resources costs of effective deliberative democracy are high, allowing o pportunities for education, outreach, and thick participation with marginalized citizens most directly impacted by equity rulemaking is key to effective buy in and substantively equitable outcomes. Administrative law, including those formal aspects of rule making under the APA and the PRA, can be tools for creatively engaging citizens and policymakers, as evidenced by the process to implement the AFH tools. More creative, productive dialogue is needed in these contentious policy arenas and bureaucrats have a n obligation to facilitate engagement to achieve constitutional, democratic regime values while balancing legal, political, and managerial aspects of public administration. Limitations Several limitations to this study and research design exist . First, the single coder methodology utilized did not allow for confirmation testing or inter coder reliability ratings.

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139 Many qualitative studies employ multiple coders to ensure coding schema are reliable and replicable. To mitigate this limitation, the researcher reviewed every publicly available data source at least twice for coding on commenter classification and content node coding. Additionally, interview transcripts were re read after key representative quotations were pulled. Finally, manifest coding analysis was conducted via word query searches by generalized themes in each phase and category of documents to ensure that no major themes were overlooked (Potter & Levine Donnerstein, 1999). G iven the sample size of the interview respondents and the within case methodology , limited generalizations should be drawn. Further, the snowball sample solicitation method may have yielded biased results from a limited pool of interviewees. The sample was purposiv e, not representative ; and the interviews were utilized to complement other data collection and analysis (e.g. Crow et al., 2015) . The interviews took place approximately t hree years after the Final Rule publication and five years after the Proposed Rule publication , so recollections of the exact conversations , processes, and key insights may have be en imprecise . Moreover, a noteworthy concern of all qualitative research is that participants may modify their answers when they know they are being studied. The researcher attempted to mitigate this limitation by utilizing available data qualitative research in the first phase to triangulate and confirm the results (see Leech & O nwuegbuzie, 2008) . Finally, while the case study methodology allowed for high internal validity, the is a nother limitation. As Ragin et al. (2003) note [ The ] case study strategy is well suited for close examination of complex empirical processes, for assessing the meaning that actors attach to their actions, or for clarifying categories and concepts offer powerful tools for

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140 constructing generalizations, testing, theories, or making broad predictions (p. 323). As there is limited research in the area of rulemaking for social equity by redistributive agencies, this case study approach allowed for inte nsive study and understanding of complexity over extensiveness and generalizability (Ragin et al., 2003). There are limitations to this research that are important to note and consider. Single coder methods were utilized that should be tested and replicate d further with multi coder reliability indices in future research. Additionally, the singular, albeit robust, case study presented here prevents this from being a generalizable of rulemaking in distributive agencies. The next section details how this resea rch might be expanded through additional case study analyses to compare, confirm, or disconfirm the results and findings. Despite these limitations, the research does have relevance and applicability beyond the case of AFFH rulemaking. The results confirm prior research on agency rulemaking in contentious policy areas to enhance social equity . The study confirms that for successful rulemaking, bureaucrats need deep contextual knowledge of the agency and its varied internal interests , effective and creative citizen engagement strategies within statutory bounds , and political savvy and awareness . These findings have practical applications for policymakers conducting rulemaking and also for citizens lobbying for effective and meaningful participation and engag ement. Future Research This research provides a framework to begin to examine federal rulemaking in contentious policy arenas in redistributive agencies . This exploratory analysis of rulemaking using the AFFH case provides a foundation upon which future research may be conducted across multiple cases and observations to shore up a broader understanding of rulemaking in redistributive agencies. The extended case study method utilized for the AFFH might be further

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141 supported by additional interviews w ith stakeholders in the rulemaking process to bolster the findings from interviews with public officials. The coding schema, semi structured interview questions, and methodology could be utilized in cross case analyses to determine generalizable findings a nd variances ( Eisenhardt, 1989). Additional cases might be selected on a most or least similar basis to compare and contrast other contexts in which such findings may be expanded or validated (Yin, 2003). An examination of rulemaking via the negotiated ru lemaking (reg neg) process may also demonstrate how or whether that process is more effective in ensuring procedural and substantive equity. Through a rigorous and transparent study methodology, further research could replicate this approach and examine a broader sampling of rules and regulations promulgated to enhance social equity. Additional research might also investigate the effects and outcomes of the AFFH. While the Trump administration has put the implementation of the Assessment of Fair Housing (A FH) tools on hold until 2020, there are still communities that have approved AFHs in place. These different fair housing planning models provide a context of natural experiments that could be examined and studied empirically to determine how or whether out comes in terms of integration, investments in racially or ethnically concentrated areas of poverty (RECAPs) , and access to areas of opportunity within communities dif fer under the new fair housing planning model. Economic scholars focused on housing segregation and the impacts of AFFH do find that, in communities that implemented and adopted the AFH, those plans produce more concrete and measurable fair housing metrics than the previous Analysis of Impediments process under the Fair Housing Ac t (Steil & Kelly, 2018). Longer term impacts and outcomes from those AFH Plans are still unknown but have the potential to change the status quo and achieve greater integration, inclusion, and social equity in communities.

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142 Conclusion This research soug ht to answer how redistributive agencies formally and informally incorporate equity into rulemaking. Through qualitative data analysis of secondary data and interviews with public officials, this examination of the Affirmatively Furthering Fair Housing Rul e revealed the obstacles and necessary precursors to successful rulemaking to enhance equity. The findings bring to light how formal rulemaking processes may not increase procedural equity, access, or participation evenly for all citizen and stakeholder groups. T he extent to which formal rulemaking processes lead to substantive equity outcomes may depend on the complexity and contentiousness of the policy arena. Effective rulemaking during the informal stages requires managerial, political, an d legal acumen on behalf of public administrators. The research adds to the scholarly dialogue on administrative law and the role of bureaucratic discretion in facilitating equity outcomes through rulemaking. Rulemaking in redistributive rather than regul atory agencies is distinct in how public participation impacts equity outcomes. Deliberative democracy through thin participation mandated by the APA may not be the most effective way to engage the public in an area as contentious as fair housing policy. T he research provides insights for citizens and public servants alike on how to most effectively engage in agency rulemaking. In January 2018, the Trump Administration and HUD, under Secretary Ben Carson, put into place a delay on the use of the Assessment of Fair Housing (AFH) Tool (Capp, 2018). While the AFFH regulations remain in place, HUD suspended the supplementary AFH tool , which communities relied upon to achieve a ffirmative fair housing planning. This delay speaks to the

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143 difficult y in policymaking for equity and is reminiscent of the recent suspension of key aspects of the Voting Rights Act (VRA). In highly contentious arenas where political divides are stark, forward progress is not always even or steady. While the regulations implementing the Fair Housing Act remain in place, the tools for communities and jurisdiction to comply with those new rules will not be utilized or required until at least 2020. Although effective participation was garnered through the PRA to implement the AFH, the implementa tion outside of the statutory bounds of the APA and rulemaking itself made it a n easy target for politically motivated delays. The future of fair housing planning, implementation, and enforcement of the Fair Housing Act remain uncertain. Nevertheless , this research demonstrates that there is potential for effective bureaucratic tools and administrative oversight to achieve equity, while balancing and addressing concerns of effectiveness and efficiency. Rulemaking provides a tool for public servants to deliberatively engage with the public, implement long awaited policy questions that remain even after congressional action, and address complex social, political, racial, and economic challenges. Future research into additional rulemaking by r edistributive agencies might provide additional insight into how administrators can most effectively structure policies to achieve citizen engagement and equity.

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APPE NDI X A . Sample o f Existing Rulemaking Studies b y Agency Type Agency/Policy Type Article Agency/Policy Context Regulatory (19) Balla & Wright (2001) National Drinking Water Advisory Council (NDWAC), advisory committee within the Environmental Protection Agency *(EPA) Carpenter et al. (2012) Food and Drug Administration (FDA) Cavazos & Rutherford (2011) Federal Aviation Administration (FAA) Crow et al. (2015, 2016) State level environmental regulatory agencies Gangadharan (2009) Federal Communications Commission (FCC) Gelb & Lief Palley (1979) 10 rules and statutes studied, mostly regulatory (e.g. equal employment, pregnancy and disability acts) Jewell & Bero (2007) State level ergonomics regultion Langbein & Kerwin (2000) EPA Levy & Franklin (2013) Electronic monitoring of long haul trucking McCaffrey, Smith, Martinez Moyano (2007) Securities Exchange Commission (SEC) McKay & Yackee (2007) Department of Labor (DOL) & Department of Transportation (DOT) Naughton et al. (2009) DOT Nelson & Yackee (2012) DOT Regens & Rycroft (1986) Federal Energy Administration (FEA) Shipan (2004) FDA Terman (2012, 2015) State level government procurement oversight and monitoring entity Woods (2015) State level environmental regulatory agencies

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159 Yackee (2006); Yackee & Yackee (2006) 40 rules in 4 agencies: DO's Employee Standards Administration (ESA), OSHA, DOT's Federal Highway Administration (FHWA), Federal Railroad Administration Yackee (2012) DOT's National Highway Traffic Safety Administration (NHTSA) Multiple/ Unspecified (9) Furlong & Kerwin (2005) Systemic random sample, surveying lobbyist government affair officials Golden (1998) 11 rules selected randomly at the EPA, NHTSA, and HUD Haeder & Yackee (2015) All final rules reviewed by OMB from 2005 2011 Lavertu & Yackee (2014) All published rules in Unified Agenda from 1995 2006 Roman (2017) Random sample survey of Procurement Specialists across Federal agencies West (2004) 42 proposed rules across 14 agencies, including EPA, HUD, FDA, VA, SSA West (2013) All substantive rules published in Unified Agenda in Spring 2007 Woods (2009) State level survey of 991 agency directors in 15 states, multiple agency types Yackee (2015, 2015) State level health related policy rules (regulatory and possibly distributive or redistributive) Redistributive (2) Furgol & Helms (2011) State level education policy implementation of NCLB within Department of Education Rabkin (1980) Office of Civil Rights within Health, Education, & Welfare (HEW) Distributive (1) Weimer & Wilk (2016) Organ Procurement & Transplantation Network (OPTN) under HHS

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160 B: Excel Analysis Tool Final Rule The purpose of this codebook is to measure the amount and type of changes that happened during the rulemaking process between the Draft and Final Rule of the AFFH. It is also to measure the number and types of commenters, expressed commenter values, and va lues and rule changes specific to social equity. Final Rule Preamble (80 FR 42277) Major Changes Noted Support: Mission Support: Resources Support: Change Status Quo Oppose: Overreach Oppose: Cost Oppose: Change Status Quo Ambivalent: AFH Tool Ambivalent: Definition/ Clarificaton Clarifies that HUD supports a balanced approach to affirmatively furthering fair housing by revising the created a new provision listing goals and priorities a program participant may take to affirmatively further fair housing, which may include, but are not limited to, place based solutions and options to increase mobility for protec ted classes. (See §§ 5.150, 5.152, and 5.154.) 1 1 5.152.) 1 Total 11 5 1 3 6 0 8 13

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161 C . Interview Consent a nd Disclosure Primary Contact: Maren Trochmann, Doctoral Candidate, University of Colorado Denver (701) 261 5212 (cell) Study: Title: Deliberative Democracy, Rulemaking, and Social Equity: An Examination of How Redistributive Agencies Balance Concerns of Equity in Rulemakin g through the Case of the Affirmatively Furthering Fair Housing Final Rule Colorado Multiple Institutional Review Board (COMIRB) has determined that this study and associated interviews with public officials about their role in federal agency rulemaking is not subject to human subjects review and approval. You are being asked to be in a research study. This form provides you with information about the study. The researcher will describe this study to you and answer all your questions. Please review the information below and ask questions about anything you don understand. Why i s this study being done? This study seeks to investigate the mechanisms of rulemaking in contentious policy arenas that focus on concerns of social eq uity, such as fair housing. Specifically, the overall goal of this study is to better understand how citiz en engagement and bureaucratic discretion work in tandem to influence the outcomes of federal agency rulemaking. You are being asked to be in this research study because you have been involved in the rulemaking process through your role as a public officia l. What happens if I join the study? If you join the study, you will be asked to participant in a one time in person or phone interview that will take approximately 15 30 minutes. No demographic information will be collected. The interview will be scheduled at your convenience via email corre spondence. Interviews will be audio recorded and then transcribed. Upon transcription, initial recordings will be destroyed. Transcribed interview responses will be de identified and kept confidential. Your participation in this project will be completed a fter the interview. What are the possible discomforts or risks? This research is considered to be minimal risk. That means that the risks associated with this study are the same as what you face every day. There are no known additional risks to those who take part in this study. What are the possible benefits of the study? There are no direct benefits to you for participating in this study. However, this study will provide valuable information re garding informal mechanisms of the rulemaking process and may be used to improve mechanisms of deliberative and engaged democracy through participation in rulemaking. Who is paying for the study?

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162 This research is not sponsored or paid for by any agency, institution, or other interests. It is being conducted solely for academic and scholarly study. Will I be paid for being in the study? Will I have to pay for anything? It will not cost you anything to participate in this study. You will not be paid for your participation in the study. Is my participation voluntary? Y es, taking part in this study is strictly voluntary. You have the right to choose not to take part in this study. If you choo se to take part, you have the right to stop at any time or decline to answer any specific questions. If you refuse to participate o r decide to withdraw at a later time, you will not lose any benefits or rights to which you are entitled. Who will see my research information? The researcher will do everything in her power to keep your interview responses private and confidential, though this cannot be guaranteed. The only people allowed to see the full interview transcripts and responses will be the researcher and her disser tation chair and committee members. The advisor and committee are providing oversight on this study and may need to review interview responses to ensure the study is being conducted properly and your rights and safety are protected. Agreement to be in this study and use my data I have read this consent and authorization form about the study, or it was read to me. I und erstand the possible risks and benefits of this study. I understand and authorize the access, use, and disclosure of my interview responses and information as stated in this form. I know that being in this study is voluntary. I choose to be in this study. Signature Date

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163 D . Semi Structured Interview Script [Read disclosures and consent. Co llect signed consent or record verbal agreement.] Interviewee Background [To be completed in advance of interview, securely stored, and later de identified] Name/Title: ____________________________________________________________ Contact information: _____________________________________________________ Date and time of interv iew: ________________________________________________ Interview Script 1. Background: Please tell me about your involvement with the drafting of the Affirmatively Furthering Fair Housing (AFFH) Demonstration, Proposed, and/or Final rule. [Prompts, if needed: How long have you been working with HUD and in what capacity? How were you involved in policy making decisions and rulemaking efforts around the AFFH rule?] 2. Informal Pre Rulemaking Processes: When the AFFH Demonstration and Proposed Rule were first under consideration, what were 3. Informal Rulemaking Processes: During the drafting of the Demonstration or Proposed Rule, who/what were key influences or considerations that played a ro le in the Proposed Rule(s)? [Prompts, if needed: what form of public participation and citizen engagement was undertaken?] 4. Formal Rulemaking Processes: While drafting of the Final Rule and considering public comments, how did you weigh and consider

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164 5. Informal vs. Formal Processes: Which processes do you believe facilitated substantive public participation? Which processes led to the mo st substantive changes in the Final Rule? [Prompt: were there any citizens, advocacy groups, industry groups, or other actor s that had a substantive role in shaping the Rule?] 6. Snowball Question/Technique: What other officials or individuals should I playe d a substantive role in this Rulemaking process?

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165 E. Guidance f or Interview Transcription a nd Analysis Research Questions and Hypotheses: RQ1: How do bureaucracies formally address concerns of social equity in the rulemaking process? RQ1a: To what extent do those processes lead to substantive social equity outcomes? Proposition 1: Procedural equity through formal rulemaking will lead to outcomes of substantive social equi ty. RQ2: How do bureaucracies informally address concerns of social equity in the rulemaking process? RQ2a: To what extent do those processes lead to substantive social equity outcomes? Proposition 2: Informal rulemaking functions facilitate the exploration of issues and accommodations of diverse interests, which may enhance substantive social equity. _ ________________________________________________________________________ Coding Instructions: Coders should read through the full transcript prior to beginning coding Coders should review codebook before coding When coding, coders should: o Code entire sente nces, including any necessary contextual information around that sentence (when appropriate or necessary) o context surrounding the wo rd in question o Code for a single category of code at a time (i.e. code an entire document for all codes under super code and then return to the beginning of the transcript to code for all codes under super code) o Code segments of text into multiple codes, if appropriate (i.e. codes are not mutually exclusive)