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.
HUD published an interim Final Rule (IFR) “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” in the Federal Register on June 10m 2921 shortly after the Biden administration took office. The IFR rescinded rule issued by the Trump Administration on August 7, 2020. The IFR, which went into effect on July 31, 2021, requires “program participants” (local and state governments as well as public housing agencies, PHAs) to submit “certifications” (pledges) that they will affirmatively further fair housing (AFFH) in connection with their Consolidated Plans (ConPlans), Annual Action Plans to their ConPlans, and Annual PHA Plans.
The IFR does not require a specific planning process such as the Assessment of Fair Housing (AFH) in the 2015 AFFH Rule. Instead it creates a voluntary fair housing planning process; program participants may use the AFH, or the previous Analysis of Impediments to Fair Housing, AI (Information about the AI is here), or some other means to demonstrate their compliance with the obligation to affirmatively further fair housing.
“HUD intended to undertake separate rulemaking to improve upon the July 16, 2015 Affirmatively Furthering Fair Housing rule. It did so by issuing a proposed AFFH rule on February 9, 2023. NLIHC was generally pleased with the proposed AFFH rule and considered it an improvement over the 2015 AFFH rule, abruptly removed by the Trump administration. The proposed rule had six overarching features NLIHC especially endorsed – along with suggestions for further improvement for each. The six overarching features were: enhanced community engagement, greater public transparency, a public complaint process, a stronger link between the (new) Equity Plan goals and Consolidated Plans and PHA Plans, an annual evaluation of progress toward achieving fair housing goals, and clarification and emphasis on the need for a “balanced approach” to affirmatively furthering fair housing.”