President Joe Biden issued a memorandum to the secretary of HUD instructing the agency to redress the nation’s long history of discriminatory housing practices and policies and reaffirming the administration’s commitment to end housing discrimination. Section 1 of the memorandum provides a brief history of housing discrimination and its enduring consequences for communities of color while also acknowledging the federal government’s role in perpetuating exclusion and segregation. The memorandum also orders that the secretary of HUD reexamine the previous administration’s rulemaking on the Affirmatively Furthering Fair Housing (AFFH) rule and the Disparate Impact rule.
Section 2. Examining Recent Regulatory Actions, orders the HUD secretary to examine the effects of the previous administration actions against the AFFH rule and Disparate Impact rule. This includes examining former President Trump’s unilateral decision in publishing “Preserving Community and Housing Choice,” which repealed the 2015 AFFH rule (see Memo, 07/27/20), and the effect this decision has had on HUD’s statutory duty to affirmatively further fair housing.
The memorandum also orders the HUD secretary to examine the previous administration’s changes to the Disparate Impact rule (see Memo, 09/14/2020), and the effect that it has had on HUD’s statutory duty to ensure compliance with the Fair Housing Act.
The memorandum further instructs the HUD secretary to take the necessary steps to implement the Fair Housing Act AFFH requirement and to prevent practices that have disparate impact. The memorandum states, “Based on these examinations, the Secretary shall take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements that HUD administers its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act including by preventing practices with an unjustified discriminatory effect.”
Since the passing of the Fair Housing Act of 1968, the federal government, states, and local communities have been required by law to work to undo the segregation of communities that federal housing policy created in the first place. The requirement to affirmatively further fair housing is enshrined in this law, but no meaningful guidance existed until the AFFH rule was published in 2015. The 2015 AFFH rule made the strongest effort in decades to reverse harmful patterns of segregation and discriminatory practices in communities across the country. The rule equipped communities with the tools and guidance they needed to meet their obligations under the Fair Housing Act, giving jurisdictions the flexibility to identify fair housing challenges and develop priorities and methods for addressing them. In 2018, former HUD Secretary Ben Carson prematurely suspended implementation of the 2015 AFFH (see Memo, 05/21/2018) before repealing it entirely by the “Preserving Community and Housing Choice” final rule.
For more than 40 years, HUD and the courts have interpreted the Fair Housing Act to prohibit housing policies or practices that have a discriminatory effect even if there was no apparent intent to discriminate. There are 13 U.S. Courts of Appeals, 11 of which have heard disparate impact cases, and all have upheld disparate impact and applied a burden-shifting standard. Because there were minor variations in how the courts and HUD applied the concept of discriminatory effects over the years, a proposed rule in 2011 offered a standard for comment, culminating in a final Disparate Impact rule on February 15, 2013. That final regulation established uniform standards for determining when a housing policy or practice with a discriminatory effect violates the Fair Housing Act. On September 24, 2020, the Trump Administration published its final rule that would shift the burden of proof from housing providers, financial institutions, and insurance companies to the victims of discrimination (see Memo¸ 09/14/2020). This rule was set to go into effect on October 25, 2020, but was halted due to a preliminary nationwide injunction issued by the U.S. District Court for the District of Massachusetts (see Memo, 11/02/2020).
Acting HUD Secretary Matt Ammon released a statement on the new memorandum that includes the following language:
President Biden’s executive order is a vital step toward redressing the federal government’s legacy of housing discrimination and securing equal access to housing opportunity for all.
Racially discriminatory housing practices and policies have kept communities of color from accessing safe, high-quality housing and the chance to build wealth that comes through homeownership. To this day, people of color disproportionately bear the burdens of homelessness, pollution, climate-related housing instability, and economic inequality because of deliberate and systemic efforts to deny them fair and equal access to housing opportunity.
Only by recognizing and acknowledging our nation's history of housing discrimination can we begin to lift the barriers to safe, accessible, and affordable housing. With this executive order, President Biden is taking meaningful action to advance racial equity in housing and expand opportunity for all. HUD looks forward to working closely with the President and his administration to expand equitable access to housing for millions of Americans.
While the memorandum neither makes clear if HUD will implement the 2015 AFFH rule nor discusses a timeline for changes to these rules, it does reaffirm the administration’s commitment to housing justice and undoing the previous administration's harmful actions against fair housing. NLIHC will continue to inform readers with updates to these rules.
Read the “Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies” at: https://bit.ly/3iX7HVZ
Read the Memorandum in the Federal Register at: https://bit.ly/2MyAMuy
Read Acting HUD Secretary Ammon’s statement at: https://bit.ly/3pv3T0m
More information about AFFH is on pages 7-14, 7-21, 7-27, and 7-35 of NLIHC’s 2020 Advocates’ Guide.
“Preserving Community and Housing Choice” is at: https://bit.ly/2P5Xk45
More about disparate impact is on page 7-8 of NLIHC’s 2020 Advocates’ Guide.
The Federal Register version of HUD’s final Disparate Impact rule is at: https://tinyurl.com/y5omyvps