The U.S. Department of Housing and Urban Development (HUD) officially repealed the Affirmatively Furthering Fair Housing (AFFH) rule, replacing it with a rule titled “Preserving Community and Neighborhood Choice.”
The 2015 AFFH rule required all local, state, and public housing officials to use the Affirmatively Fair Housing Assessment Tool, which uses HUD data and questionnaires to help leaders identify “patterns of integration and segregation; racially and ethnically concentrated areas of poverty; disparities in access to opportunity; and disproportionate housing needs, as well as the contributing factors for those issues.”
President Trump had said the rule, which required local governments to create a plan for remedying housing discrimination and segregation, was leading to the demise of suburban neighborhoods, language that some decried as racist:
“I am happy to inform all of the people living their suburban lifestyle dream that you will no longer be bothered or financially hurt by having low-income housing built in your neighborhood,” Trump tweeted.
“Your housing prices will go up based on the market, and crime will go down,” Trump added in a second tweet. “I have rescinded the Obama-Biden AFFH Rule. Enjoy!”
“HUD grantees are generally required to certify that they will ‘affirmatively further fair housing’ (AFFH) through HUD’s implementation of the 1968 Fair Housing Act and other applicable statutes.
Reinforcement for Civil Rights
For years after this certification was first required, “it was merely part of a general commitment to use the funds in good faith and accompanied similar certifications not to violate various civil rights statutes,” the agency said.
“Over time however, HUD began to use this AFFH certification as a vehicle to force states and localities to change zoning and other land use laws. This was done via a series of regulations and guidance documents culminating with the 2015 AFFH rule.
“In the new rule, HUD repeals the 2015 AFFH rule and its related accretions.”
In aninterviewwith Inman, Debby Goldberg, vice president of housing policy at the National Fair Housing Alliance, said that before the Obama-era AFFH in 2015, rule certain jurisdictions would do the bare minimum to escape possible legal ramifications.
“In the old days … it was not uncommon for jurisdictions to hold Fair Housing poster contests during April, which is Fair Housing Month,” Goldberg explained. “They would have school kids do posters about fair housing, and somebody would judge them and they would pick a winner and award prizes.”
“That was what they would claim they were doing to affirmatively further fair housing,” she added. “And they would be deemed in compliance.”
According to the NFHA, the new rule will no longer require jurisdictions to do any kind of fair housing planning.
“They will not be asked to consider any data, analysis or public input on local patterns of segregation and integration, disparities in access to community resources and amenities, discrimination and systemic racism or the like. Actions they take that perpetuate segregation will not be deemed to conflict with their AFFH obligations,” the nonprofit said.
“They will not have to establish fair housing goals, chart a strategy for achieving them or keep records that document those efforts. HUD will not monitor their performance or oversee their compliance with their fair housing obligations.”
Responsibility for Fairness
Three experts, including Goldberg, told Inman that it’s important for people to understand the rescinding of the 2015 AFFH rule does not negate the responsibility of jurisdictions that receive HUD funding or Community Development Block Grant funds to prove they’re affirmatively furthering fair housing.
However, Goldberg said the bar has been set so low that it would be hard to take legal action against a jurisdiction for not fulfilling the mandate.
In a press release, the NFHA called on HUD to re-instate the 2015 AFFH regulation, saying the new Preserving Community and Neighborhood Choice rule was “a step backwards” in the fight for fair housing and weakens the Fair Housing Act by incorrectly redefining the meaning of fair housing and eliminating important tools for addressing systemic housing discrimination.
“Simply put, the Preserving Community and Neighborhood Choice rule … lacks substance, clarity, and accuracy in its definition of fair housing. To make matters worse, this rule is going into effect amid a global health pandemic and economic downturn that’s disproportionately impacting under-resourced communities of color. It also ignores the growing public outcry for the country to dismantle structural racism and make true progress and equal opportunity a reality for all Americans.”
In a statement, NFHA President Lisa Rice said studies have shown that all residents regardless of race or national origin benefit from diverse, inclusive communities, which is a goal of the Fair Housing Act.
The groups said the new rule served to stoke divisions among Americans, took away an important decision-making tool for local governments to distribute resources and implement strategies to address housing discrimination and lack of access to opportunity, and did nothing to ameliorate the effects of mandated segregation that was federal government policy for decades.
“This new rule will make no positive impact on addressing persistent patterns of racial segregation that continue to create unfair and unjust life outcomes for people based on their ZIP codes…. Local governments can do nothing but talk, take no action and claim they furthered fair housing. This approach won’t affirmatively further anything other than discrimination.”
Effort to Prevent Discrimination
On Sept. 4, HUD finalizeda new rule for its implementation of the Fair Housing Act’s “disparate impact” standard. The 2013 disparate impact rule was meant to prevent discrimination against protected classes under facially neutral policies regardless of intent.
HUD proposed an update to the rule in August 2019, which outlined a five-step threshold for plaintiffs to prove unintentional discrimination and give defendants more guidance on how to rebut the claims. Activists at the time argued the updated guidance would make it easier for businesses and landlords to discriminate and harder for tenants to bring housing discrimination suits.
In a press release in September, the Lawyers’ Committee for Civil Rights Under Law said the new disparate impact rule “creates overwhelming barriers for victims of discrimination to overcome, and essentially prevents most challenges to policies and practices that preserve residential segregation.”
In a statement, Kristen Clarke, the civil rights organization’s president and executive director, hinted that the new rule would be challenged in court.
“This rule threatens to eviscerate the key protections of the Fair Housing Act and makes it virtually impossible for communities of color to prevail when challenging housing discrimination,” she said.
The National Association of REALTORS® (N.A.R.) called on HUD in July to end its attempt to change the 2013 disparate impact rule and on Wednesday expressed its disapproval of the finalized change.
“Instead of pursuing policies that hamper our ability to address racial inequities in this country, N.A.R. believes the federal government should be working to eliminate barriers to homeownership for all groups of Americans,” said NAR President Vince Malta in a statement.
“N.A.R. supports disparate impact as a legal theory to address the unfair housing practices that inhibit fair housing and unfairly target members of protected classes, while still protecting our members’ ability to run their businesses in a free and functional real estate market. We continue working with state and local Realtor associations to advance our overall commitment to fair housing and housing opportunity.”