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HUD’s Proposed AFFH Rule Is Not a Fair Housing Rule

HUD’s new proposal to gut the 2015 Affirmatively Furthering Fair Housing (AFFH) rule represents a complete retreat from efforts to undo historic, government-driven patterns of housing discrimination and segregation throughout the U.S. The proposal underscores Secretary Carson’s fundamental misunderstanding or willful misreading of the Fair Housing Act and its obligations. His proposal would allow communities to ignore the essential racial desegregation obligations of fair housing law and is the latest of Secretary Carson’s attempts to weaken and disrupt HUD’s fair housing duties.

NLIHC, the National Housing Law Project, and other partners are leading an effort to oppose HUD’s proposed AFFH rule through the Fight For Housing Justice campaign. Advocates can learn more, leave comments, access talking points and other resources, and catch up on news at: https://www.fightforhousingjustice.org

HUD posted an advance version of its proposed replacement of the 2015 Affirmatively Furthering Fair Housing (AFFH) rule on January 7. The formal Federal Register version is scheduled to be published on Tuesday, January 14. Comments will be due in 60 days. The proposed rule is not a fair housing rule. It considers housing that might be “affordable” to be the same as housing that is available to people in the Fair Housing Act’s protected classes based on race, color, national origin, sex, familial status, disability, or religion. Based on a misguided supply-side ideology, the proposed rule falsely assumes an overall increase in the supply of housing will trickle down to become “affordable” without any consideration of a jurisdiction’s policies and practices affecting people in the protected classes or any focus on overcoming historic patterns of housing segregation created by discriminatory federal housing policies in the first place.

The proposed rule would be worse than the minimal AFFH process that existed from 1994 to 2015, which the Government Accountability Office (GAO) found to be ineffective. The Obama administration issued a new AFFH rule in 2015 that provided jurisdictions clearer guidance and criteria for meeting their Fair Housing Act AFFH obligations and a set of tools to use to develop and implement plans to undo entrenched patterns of housing segregation. 

HUD prematurely suspended implementation of the 2015 rule based on only 49 initial Assessment of Fair Housing (AFH) submissions, 32 of which were ultimately accepted by HUD. Contrary to HUD’s claims, the 2015 rule was not prescriptive; it did not force jurisdictions to adhere to set issues or solutions. The 2015 rule gave jurisdictions the flexibility to identify their own fair housing issues and develop their own priorities and methods for taking action to address them.

NLIHC president and CEO Diane Yentel commented in a January 7 statement, “HUD should abandon this ill-conceived proposal, reinstitute the 2015 AFFH rule, and resume its implementation.”

A New AFFH Certification Demonstrates the Supply-Side Approach

The proposed rule discards a genuine means to affirmatively further fair housing as required by the Fair Housing Act of 1968. The rule scraps the 2015 rule’s Assessment of Fair Housing (AFH) that was the product of nearly four years’ of diligent consultation and broad public engagement on the part of HUD starting in late-2009.  The AFH was developed in response to jurisdictions’ requests for uniform guidance in order to reduce uncertainty regarding how to meet their AFFH obligations. 

In place of the AFH, HUD proposes a newly designed “AFFH certification” that reflects HUD’s equating an increased supply of housing with fair housing choice. Simply increasing the supply of market-rate housing will not, however, necessarily result in housing affordable to low-income - much less extremely low-income - people, and it is even less likely to reduce or eliminate discriminatory attitudes, policies, and practices or entrenched segregation. 

For the AFFH certification, HUD would require a jurisdiction to identify three goals and describe how addressing those goals would address fair housing. The proposed rule would not, however, require such a description if a jurisdiction chose its goals from a list of 16 “obstacles” that HUD considers inherent barriers to fair housing choice. The effect of the exemptions is to steer a jurisdiction toward choosing the “obstacles,” 13 of which have nothing to do with fair housing; rather, they are factors that might affect the cost of building housing and thereby might inhibit growth of the supply of housing.

“Obstacles” include the time it takes for title clearance, construction-approval procedures, construction-permitting procedures, design standards, and building codes. Addressing another “obstacle,” tax policies, might harm local and state housing trust funds. Additional “obstacles” - such as rent control, labor protections, energy and water efficiency policies, and wetland and environmental rules - protect people and the environment.

A New HUD Evaluation Process Does Not Measure AFFH

HUD would evaluate a jurisdiction’s compliance with its obligation to affirmatively further fair housing by assessing the extent to which the jurisdiction’s efforts measure up based on nine factors, only two of which relate to fair housing choice. Two factors relate to housing supply, two to affordability, and three to quality. Assessing a jurisdiction on the basis of these nine factors will not provide a genuine measure of its success at achieving its AFFH obligation.

Contrary to HUD’s false claims that the 2015 rule did not take into account the unique fair housing circumstances facing individual jurisdictions, the proposed rule would rate and compare jurisdictions based on their nine-factor evaluations. Arbitrarily rating or ranking jurisdictions using the nine factors is a meaningless exercise that cannot truly gauge the success of any jurisdiction’s compliance with its AFFH obligations.

Jurisdictions that HUD ranks as “Outstanding” would be eligible for preference points when competing for grants through Notices of Funding Availability (NOFAs), ostensibly an incentive for jurisdictions to better perform their AFFH obligations. But few HUD programs operate via NOFAs, and most of these are relatively small programs. High ranking jurisdictions are likely to be those that readily strive to genuinely comply with their obligation to affirmatively further fair housing, so would not need these incentives. Jurisdictions that attempt to avoid complying with AFFH are not at all likely to be motivated by the marginal benefits of points awarded in a NOFA competition.

Public Participation in the AFFH Process Greatly Diminished

The proposed rule would eliminate the 2015 rule’s separate public participation process that required a public hearing and written comment period to inform a jurisdiction about its residents’ fair housing concerns and priorities before any AFFH-related considerations might be reflected in a jurisdiction’s Consolidated Plan (ConPlan), which is focused on housing and community development needs. Identifying fair housing issues, assessing priorities among many fair housing issues, and recommending fair housing goals and actions entail very different concepts and sometimes even different stakeholders than the ConPlan process, thereby warranting separate public participation procedures. 

Public Housing Agencies’ Requirements Greatly Reduced

Public housing agencies (PHAs) would not have to have an AFFH certification listing AFFH goals. The proposed rule would eliminate the 2015 rule’s requirement of PHAs to take “meaningful actions” and to not take actions inconsistent with the obligation to affirmatively further fair housing. A PHA would merely have to consult with its jurisdiction on how the two could satisfy their common AFFH obligations.

The advanced version of the proposed AFFH rule is at: https://bit.ly/2t2YOnZ

A detailed NLIHC summary and analysis is at: https://bit.ly/39Wrsbc

Diane Yentel’s January 7 media statement is at: https://bit.ly/303vpX7

More about AFFH is in NLIHC’s 2019 Advocates’ Guide, pages 7-14, 7-21, and 7-26