A proposed Affirmatively Furthering Fair Housing (AFFH) rule providing “a more effective means to affirmatively further the purposes and policies of the ‘Fair Housing Act’” was cleared by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) on December 27, 2022. HUD’s Office of Fair Housing and Equal Opportunity (FHEO) will next submit the proposed rule for publication in the Federal Register, initiating a 60-day public comment period. NLIHC will notify advocates when the proposed rule is published and will analyze and summarize the rule, providing guidance regarding the submission of comments. Relatedly, FHEO announced on December 23, 2022, that it had posted a video series providing guidance regarding how to use its AFFH Data and Mapping Tool (AFFH-T), along with other local data sources, to analyze local conditions as part of a fair housing analysis and planning process. The three-part video series includes “Introduction to the AFFH-T,” “How to Use the AFFH-T for Fair Housing Planning,” and “How to Find and Use Local Data in Fair Housing Planning.” States, cities, and counties that are required to submit a Consolidated Plan, as well as public housing agencies (PHAs), are still required to undertake a fair housing planning process of their own design in order to comply with their obligation to affirmatively further fair housing. The AFFH-T video series is thus likely to be very helpful.
Brief Background
FHEO published an Interim Final Rule (IFR), “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications,” in the Federal Register on June 10, 2021, shortly after the Biden administration took office (see Memo, 6/14/21). The IFR, which went into effect on July 31, 2021, did not reinstate the 2015 AFFH rule but merely required “program participants” (local and state governments as well as PHAs) to submit “certifications” (pledges) that they will affirmatively further fair housing in connection with their Consolidated Plans (ConPlans), Annual Action Plans to their ConPlans, and annual PHA Plans. The IFR did not require a specific planning process such as the process detailed in the 2015 AFFH Rule; instead, the IFR created a voluntary fair housing planning process.
At that time, FHEO stated that it intended to undertake separate rulemaking to improve upon the July 16, 2015, Affirmatively Furthering Fair Housing rule, which was suspended by the Trump administration in 2018. On August 7, 2020, the Trump administration abruptly and without public review and comment published the “Preserving Neighborhood and Community Choice” rule. The Biden administration’s IFR rescinded that rule.
Title VIII of the “Civil Rights Act of 1968” (the “Fair Housing Act”) requires jurisdictions receiving federal funds for housing and urban development activities to affirmatively further fair housing. The Fair Housing Act not only makes it unlawful for jurisdictions to discriminate; the law also requires jurisdictions to take actions that can undo historic patterns of segregation and other types of discrimination, as well as 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, and religion. Although affirmatively furthering fair housing has been enshrined in law since the enactment of the Fair Housing Act of 1968, meaningful regulations to provide jurisdictions and PHAs with guidance on how to comply had not existed until the July 16, 2015, AFFH rule.
More information about AFFH is available on NLIHC’s AFFH webpage at https://bit.ly/3WGqlEh and on page 7-14 of NLIHC’s 2022 Advocates’ Guide.
FHEO’s Data and Fair Housing Planning AFFH-T video series is available at: https://bit.ly/3GddQsV
FHEO’s Affirmatively Furthering Fair Housing website is available at: https://bit.ly/3GcIkeH