Department of Housing and Urban Development publishes proposed rule to roll back fair housing enforcement

More than 50 years after passage of the Fair Housing Act — a law intended to end housing discrimination and increase homeownership among underrepresented groups — key enforcement provisions of it are being dismantled by the federal government. On July 28, 2020, the U.S. Department of Housing and Urban Development (HUD) published its proposed rule to roll back the Affirmatively Furthering Fair Housing (AFFH) provision of the 1968 Fair Housing Act legislation for fair housing enforcement. The public now has 60 days to comment on the proposal.

The AFFH is a provision of the 1968 Fair Housing Act signed into law by former U.S. President Lyndon Johnson. The law requires that “All executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of” the Fair Housing Act. The law also requires the secretary of HUD to administer all HUD programs in a manner that affirmatively furthers fair housing.

The AFFH requires cities and towns that receive federal money for any housing or urban development-related purpose to examine whether there are any barriers to fair housing, housing patterns or practices that promote bias based on any protected class under the Fair Housing Act, and to create a plan for rectifying fair housing barriers. The intention is to promote equal housing opportunities and level the playing field so that all neighborhoods provide the quality services and amenities that are important for people to live successful lives.

The 2015 rules required cities and towns, in order to receive funding from HUD to document patterns of racial bias in their neighborhoods, to publicly report the results every three to five years, and to set and track goals to reduce segregation. Under the rules, any jurisdiction that received money from HUD had to analyze its housing occupancy by race, disability, familial status, economic status, English proficiency and other categories. It then had to analyze factors that contribute to any prohibitive barriers in housing and formulate a plan to remedy the impediments. The plan could be approved or disapproved by HUD. This was done at both the local and regional level. If the federal government was not satisfied with a community’s efforts to reduce disparities, federal funds could be withheld.

The new 2020 proposed rules focus on increasing what is called “fair housing choice” — through greater housing supply along with safe and sanitary housing conditions that HUD says will better allow families to live where they want — rather than racially integrating communities. Among the changes sought by the Department of Housing and Urban Development: redefining what it means to promote fair housing, eliminating the assessment used to address barriers to racial integration, and encouraging cities to remove regulations that stand in the way of affordable housing, according to the proposed rule, which can be viewed here.

HUD statement

HUD recognizes that its program participants have a duty to affirmatively further fair housing (AFFH), which HUD finds essential to the appropriate administration of its grant programs. Program participants must certify that they AFFH and maintain documentation to support that certification. This rule proposes changes to HUD’s regulations regarding the reporting on program participants’ actions to AFFH so that HUD can effectively evaluate participants’ compliance with their AFFH obligations. This proposed rule would establish a uniform reporting process that respects the unique needs and difficulties faced by individual jurisdictions by assessing program participants on the concrete actions they take to AFFH and by leveraging objective metrics for fair housing choice to assist HUD’s evaluation of such actions. The proposed regulation would revise the definition of AFFH, develop metrics to allow comparison of jurisdictions, and require jurisdictions to certify that they will AFFH by identifying concrete steps the jurisdiction will take over the next five years. Jurisdictions would need to report on their progress toward the commitments in their AFFH certification through the regular consolidated plan reporting and review processes. Public housing agencies would demonstrate their efforts to AFFH through their participation in the consolidated plan process.

Industry response

The American Institute of Architects released a statement condemning the HUD’s decision to roll back the AFFH provision of the 1968 Fair Housing Act legislation aimed at helping to reverse racial segregation in housing. “AIA strongly opposes the Administration’s dismantling of this critical rule,” said AIA Executive Vice President/Chief Executive Officer Robert Ivy, FAIA. “Our federal government should confront the legacy of discriminatory housing policies as intended in the Fair Housing Act of 1968, not shrink away from the responsibility of ensuring our communities are equitable. At such a critical moment in time for addressing racial inequity, it’s clear we need to do more, not less, to provide equitable opportunity to all Americans, especially for a basic human need such as shelter.”

National Association of Homebuilders Chairman Chuck Fowke issued a statement to members that said: “NAHB has taken a strong stand that it supports the intent of Affirmatively Furthering Fair Housing while acknowledging that the rule has had serious problems in implementation at the state and local level. Unfortunately, when the president decided to repeal the rule, he took a line of attack that was uncalled for. NAHB supports the creation of affordable housing wherever it’s needed, including suburban areas.”