Fair Housing: Affirmatively Furthering Fair Housing (AFFH)
NLIHC tracks regulations around affirmatively furthering fair housing and develops resources for advocates to weigh in on the process.
Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act) requires HUD to administer its programs in a way that affirmatively furthers fair housing. The Fair Housing Act not only makes it unlawful for jurisdictions and public housing agencies (PHAs) to discriminate; the law also requires jurisdictions to take actions that 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. The protected classes of the Fair Housing Act are determined by race, color, national origin, sex, disability, familial status, or religion.
The laws that established the Community Development Block Grant (CDBG) program, the Comprehensive Housing Affordability Strategy (CHAS), and the Public Housing Authority Plan (PHA Plan) each require jurisdictions to certify in writing that they are affirmatively furthering fair housing.
States must assure that units of local government receiving CDBG or HOME funds comply. States, local governments, and PHAs must certify that they are affirmatively furthering fair housing in their Consolidated Plans (ConPlans, based on CHAS and CDBG statutes) and Public Housing Agency Plans (PHA Plans). In order to comply, these jurisdictions must have an Analysis of Impediments to Fair Housing Choice, also known as an AI.
Affirmatively furthering fair housing (AFFH) is defined in CDBG and ConPlan regulations as:
- Having an Analysis of Impediments to Fair Housing Choice (AI).
- Taking appropriate actions to overcome the effects of impediments.
- Keeping records reflecting the analysis and showing actions taken.
The AI process was widely recognized as ineffective. Therefore, after six years of obtaining stakeholder input, HUD finally issued a regulation in July 2015 designed to make AFFH meaningful while also making it easier for jurisdictions and PHAs to meet their legal obligations. However, the Trump/Carson administration suspended implementation of the 2015 rule in 2018, and issued a proposed rule on January 14, 2020. Then on August 7, 2020 the Trump administration abruptly, without public review and comment, issue a final AFFH rule effectively gutting the AFFH obligation. Jurisdictions must still use the ineffective AI process.
President Biden issued a memorandum on January 26, 2021 to the HUD Secretary instructing the department to examine the effect of the previous administration’s final AFFH rule and repeal of the 2015 AFFH rule. The Biden memorandum also directed HUD to take the steps necessary to implement the Fair Housing Act’s requirement to administer its programs in a manner that affirmatively furthers fair housing. NLIHC is urging HUD to withdraw the Trump final rule and reinstating the 2015 AFFH rule or to propose a new AFFH rule.
On April 14, 2021 HUD sent an interim rule for review titled “Affirmatively Furthering Fair Housing; Restoring Statutory Definitions and Certifications” to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB).
In the meantime, states and localities must still comply with the obligation to have an Analysis of Impediments to Fair Housing Choice, also known as an AI. Information about the AI is here.