HUD’s Affirmatively Furthering Fair Housing (AFFH) rule is facing renewed threats from conservative members of Congress and the prospect of being weakened by HUD Secretary Dr. Ben Carson.
A group of Senate Republicans led by Senator Mike Lee (R-UT) sent a letter on July 14 to Secretary Carson asking him to rescind the AFFH rule in its entirety. The letter claims that the rule would “extend the reach of the federal government beyond its authority and could take away state and local governments’ ability to make local zoning decisions.”
In fact, the AFFH rule provides local jurisdictions guidance on how to comply with a long-standing statutory requirement of the 1968 Fair Housing Act. The Fair Housing Act directs jurisdictions and public housing agencies receiving federal funds for housing and urban development to “affirmatively further fair housing" by taking active steps to overcome historic patterns of segregation and to promote fair housing choice. Under AFFH, HUD provides jurisdictions with data and a tool for assessing ways in which minorities and other protected groups might be excluded from opportunities, and requires localities to develop plans certifying they are addressing those disparities. The rule does not give HUD the authority to “make local zoning decisions.”
Several days after receiving the letter, Dr. Carson stated that HUD will move to “reinterpret” the AFFH rule. Dr. Carson has previously called the rule a doomed-to-fail attempt to “legislate racial equality.” He has since indicated that he will not reverse the rule, citing a 2015 Supreme Court ruling that upholds the disparate impact standard for housing policy. "I probably am not going to mess with something the Supreme Court has weighed in on,” Dr. Carson said. “In terms of interpreting what it means — that's where the concentration is going to be." Dr. Carson has not yet described what a “reinterpretation” might look like.