Just over two years after it first began chipping away at a controversial fair housing rule issued by the Obama administration in 2015, the Trump administration announced Tuesday that it is issuing a wholly new Affirmatively Furthering Fair Housing rule.
In 2017, Department of Housing and Urban Development Secretary Ben Carson said that HUD will look to “reinterpret” the Obama administration’s AFFH rule, which required cities and towns receiving federal funding to examine their local housing patterns for racial bias and to design a plan to address any measurable bias.
Since then, HUD has taken several steps to delay and/or alter the AFFH rule, including delaying the deadline for local governments to submit their fair housing evaluations by one year and killing a computer program that local governments were supposed to use to submit their relevant housing data to assure compliance with the AFFH rule.
But now, HUD is moving away from the Obama administration’s version of the AFFH entirely and proposing its own version of the rule.
According to HUD, the newly proposed rule “offers clearer guidance to states and local governments to help them improve affordable housing choices in their community.”
In a statement, HUD Secretary Ben Carson indicates that the Trump administration’s new rule removes the federal mandate to address systemic housing discrimination and places control over local housing efforts with officials in those cities and towns.
“HUD’s commitment to Fair Housing remains as steadfast as ever before, and this improved rule reaffirms our mission of giving people more affordable housing options in communities across the country,” Carson said.
“By fixing the old Affirmatively Furthering Fair Housing rule, localities now have the flexibility to devise housing plans that fit their unique needs and provide families with more housing choices within their reach,” Carson continued.
“Mayors know their communities best, so we are empowering them to make housing decisions that meet their unique needs, not a mandate from the federal government,” Carson added. “Having said that, if a community fails to improve housing choice, HUD stands ready to enforce the Fair Housing Act and pursue action against any party that violates the law.”
In its proposed rule, HUD lays out its vision for how the AFFH rule should function:
HUD believes that fair housing choice exists when a jurisdiction can foster the broad availability of affordable housing that is decent, safe, and sanitary and does so without housing discrimination. To that end, HUD is proposing to evaluate how program participants are carrying out their AFFH obligation as a threshold matter by using a series of data-based measures to determine whether a jurisdiction (1) is free of adjudicated fair housing claims; (2) has an adequate supply of affordable housing throughout the jurisdiction; and (3) has an adequate supply of quality affordable housing.
HUD’s new rule also redefines what the phrase “Affirmatively Furthering Fair Housing” means in the government’s view:
The current regulation defines AFFH as “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”
HUD proposes changing the definition of AFFH to “advancing fair housing choice within the program participant’s control or influence.” HUD is proposing a definition of “fair housing choice” to be allowing “individuals and families [to] have the opportunity and options to live where they choose, within their means, without unlawful discrimination related to race, color, religion, sex, familial status, national origin, or disability.”
The changes to the AFFH rule are by far the most sweeping action taken towards the AFFH rule by the Trump administration thus far.
The efforts to change the AFFH rule began in January 2018 when HUD announced that it was delaying the deadline for local governments to submit their fair housing evaluations.
But delaying the fair housing evaluations, which were required as part of the AFFH rule, essentially “gutted” the AFFH rule, according to former HUD Secretary Julián Castro, who oversaw the rule’s announcement in 2015.
HUD later killed the Local Government Assessment Tool, which HUD claimed was “confusing, difficult to use, and frequently produced unacceptable assessments.”
HUD efforts to change the AFFH rule were challenged in court by fair housing advocates, including the National Fair Housing Alliance, Texas Appleseed, and Texas Low Income Housing Information Service, which asked for a judge to require HUD to enforce the AFFH rule as originally established.
But the judge overseeing the case eventually threw out the housing groups’ case, stating that they did not prove that they were harmed by HUD’s actions.
With the court’s decision in its back pocket, HUD moved forward with its plan to “streamline” the AFFH rule by inviting comments from the public and industry participants on how best to enforce fair housing regulations.
HUD said Tuesday that it received more than 700 public comments in response.
According to HUD, many of those expressed support for the 2015 rule and urged HUD to continue to implement its requirements.
“These commenters cited the need for a way to enforce the AFFH requirement and cited the significant use of resources and public input that went into the creation of the 2015 rule,” HUD said in its new rule. “These commenters found the early results of the rule ‘promising’ and believed that improving the tools would ease the burdens and improve the process.”
But, HUD notes that a “large number” of commenters opposed the 2015 rule. “Some objected to the idea entirely, citing concerns for local control of zoning,” HUD said. “Others felt that the requirements of the rule were too onerous, specifically the level of public participation needed and the scope of data that program participants were required to address.”
According to HUD, these new changes are necessary for a number of reasons.
“Since the issuance of the 2015 final rule, HUD has determined that the current regulations are overly burdensome to both HUD and grantees and are ineffective in helping program participants meet their reporting obligations for multiple reasons,” HUD said in the proposed rule.
“While some of the burdens are a result of the assessment tools themselves, the tools are closely tied to the regulatory language, which HUD believes is too prescriptive in outcomes for jurisdictions,” HUD continued. “Therefore, HUD believes it is necessary to revise the codified regulation, not just the assessment tools.”
It appears that HUD is taking the carrot, not stick approach for addressing fair housing, seeking to reward cities for their positive efforts rather than punishing them for their lack of effort to address issues.
From the proposed rule:
The Fair Housing Act “does not decree a particular vision of urban development.” HUD aims to take this into account and allow for the flexibility and innovation necessary to best further fair housing nationwide, recognizing that fair housing is an especially difficult and complex policy area because of the competing considerations that go into promoting fair housing and other valid governmental priorities. By proposing to reward jurisdictions that are performing well in their AFFH efforts and improving in ways that will benefit entire communities, HUD will provide incentives to both jurisdictions and the general public to find ways to help local jurisdictions improve their AFFH efforts. By increasing the number of people who benefit from an expansion of fair and affordable housing, HUD expects that a larger share of the local community will be motivated to participate in local discussions on how to AFFH and what strategies are best suited for the locality. Such incentives may encourage citizens and local businesses to participate in important local housing debates when they otherwise may have sat on the sidelines. HUD believes that having buy-in from a broad range of citizens and businesses in a community will result in a stronger AFFH effort and help reduce housing discrimination.
To read the HUD’s new AFFH proposal in full, click here.