HUD Proposes New Affirmatively Furthering Fair Housing Rule

The Fair Housing Act (FHA) not only makes it unlawful for cities, counties, and other jurisdictions to discriminate, but also requires jurisdictions receiving federal funds for housing and urban development to affirmatively further fair housing (AFFH). In other words, the FHA requires them to take actions to undo historic patterns of segregation and other types of discrimination, as well as to take actions to promote fair housing choice and to foster inclusive communities.

Background. While the FHA was passed in 1968, it wasn’t until 2015, under the Obama administration, that there was meaningful guidance on how to comply with the AFFH requirement. Prior to 2015, housing authorities had to certify that they would affirmatively further fair housing, but they have only been required to complete an analysis of impediments to fair housing choice, take appropriate actions to overcome the effects of impediments, and keep records of those actions. There was no guidance on what constitutes an impediment to fair housing choice or an appropriate action to overcome it.

The 2015 AFFH rule was suspended abruptly in 2018 by the Trump administration and replaced. Shortly after taking office, the Biden administration published an Interim Final Rule to rescind the Trump mandate, announcing its intention to further improve the 2015 regulation.

Proposed Rule Stresses Setting Goals, Tracking Progress

Now, HUD has published a proposed rule to implement the AFFH requirement. It proposes to retain much of the 2015 AFFH rule issued by the Obama administration, with changes including a more robust community engagement requirement, a streamlined analysis, greater transparency, and an increased emphasis on setting goals and measuring progress.

President Biden said in a statement that the proposed rule “sends a clear message to communities across the country that just saying they won’t discriminate isn’t enough. Communities must take action to aggressively combat and end racial discrimination in our housing system. This is an important step forward to ensure every community does its part to expand equity in housing and to fulfill our promise of a nation of opportunity and equity for all.”

Equity Plan would replace AFH. Under the proposed rule, the 2015 AFFH rule’s Assessment of Fair Housing (AFH) is to be replaced by a streamlined Equity Plan. Program participants every five years would submit to HUD for review and acceptance an Equity Plan. That plan, which must be developed following robust community engagement, would contain their analysis of fair housing issues confronting their communities, goals, and strategies to remedy those issues in concrete ways, and a description of community engagement. The proposed rule would then require program participants to incorporate goals and strategies from their accepted Equity Plans into subsequent planning documents such as their consolidated plans, annual action plans, and Public Housing Agency plans.

Annual evaluations. In addition, program participants would be required to conduct and submit to HUD annual progress evaluations that describe progress toward and/or any needed modifications of each goal in the Equity Plan. Both the Equity Plans and the annual progress evaluations would be posted online.

Enforcement provisions. The proposed rule includes provisions that would permit members of the public to file complaints with HUD if program participants are not living up to their AFFH commitments, as well as various other provisions that would enable HUD to ensure that program participants are held accountable for complying with this rule.

The proposed rule can be found at www.federalregister.gov/documents/2023/02/09/2023-00625/affirmatively-furthering-fair-housing. The public comment period ends on April 10, 2023.