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Trump Administration Eliminates Affirmatively Furthering Fair Housing Rule, NLIHC and other Advocates Condemn Action, Rhetoric

The Trump Administration abruptly issued its final rule, “Preserving Community and Housing Choice,” which repeals 2015 regulations implementing the statutory obligation to “affirmatively further fair housing” (AFFH). NLIHC and 14 other civil rights and housing organizations issued a media statement condemning the administration’s action as well as the president’s use of incendiary racial rhetoric about the move for political gain.

The 2015 regulations, which were suspended by HUD Secretary Ben Carson in 2018 (see Memo, 5/21), were the first significant regulations since the Fair Housing Act of 1968 requiring federal agencies, particularly HUD, as well as states, counties, and cities to affirmatively further fair housing if they receive HUD funds. The Fair Housing Act not only banned discrimination, but it also required meaningful actions to undo decades of federal, state, and local discriminatory policies and practices that resulted in segregated communities.

The announcement about the final rule on July 23 follows President Trump’s recent false Twitter claim that the AFFH rule was having “a devastating impact on these once thriving suburban areas,” would “destroy the suburbs,” and was “not fair to homeowners.” The preamble to the final rule states that after reviewing Secretary Carson’s proposed AFFH rule (see Memo, 1/13), “the President expressed concern that the HUD approach did not go far enough,” and “The President therefore asked HUD to reconsider the rule to see whether HUD could do more…to empower local communities and to reduce the regulatory burden of providing unnecessary data to HUD. After review, and based on prior internal discussions, HUD produced the current rule.”

As NLIHC has noted, Secretary Carson’s proposed rule was not a fair housing rule; it considered 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. The proposed rule might mislead people to think that HUD proposed to comply with the Fair Housing Act’s requirement to affirmatively further fair housing. President Trump’s final rule strips away that façade and completely abandons the obligation to affirmatively further fair housing.

In its final form the “AFFH” rule in essence is reduced to three lines, two of which are in a definition section [24 CFR part 5.150]. One defines “fair housing” to mean “housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible as required under civil rights laws.” The other defines “affirmatively further” to mean “to take any action rationally related to promoting any attribute or attributes of fair housing” (emphasis added). Theoretically, to “affirmatively further fair housing” a city could merely donate one abandoned building in a disinvested neighborhood to a developer to rehabilitate and rent to low-income households, some of whom might use Housing Choice Vouchers to make it affordable. States, local governments, and public housing agencies receiving HUD funds (“program participants”) must certify that they are affirmatively furthering fair housing. The third line states that such a certification “is sufficient if the program participant takes any action that is rationally related to promoting one or more attributes of fair housing.” Although the final rule is voluminous, the bulk of the document simply removes from all HUD regulations reference to the Assessment of Fair Housing (AFH) that the 2016 rule required.

The Administrative Procedure Act (APA) requires any meaningful change to HUD regulations to undergo a 60-day public review and comment. This final rule did not undergo any review and comment. According to the preamble, the APA exempts from notice-and-comment rulemaking any “matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” Therefore, HUD asserts that this rule is exempt because the rule applies only to the AFFH obligation of grantees (including states, local governments, and public housing authorities). HUD notes that the Administrative Conference of the United States (ACUS) in 1969 urged Congress to amend the APA to remove the exemption, but Congress declined. However, HUD issued statements of policy that had the effect of voluntarily adopting ACUS’s recommendation, and that policy remains in force [24 CFR 10.1] and can no longer be repealed. Nevertheless, HUD asserts that the Secretary retains the authority to waive the requirements of 24 CFR 10.1 in individual cases. HUD’s explanation of the waiver is in a confusing, convoluted footnote.

Consistent with previous statements, the preamble of the final rule makes a number of false claims:

  • “HUD began to use this AFFH certification as a vehicle to force states and localities to change zoning and other land use laws.”
  • “Once in place, the Analysis of Impediments (AI) process [from a 1994 Consolidated Plan rule] became a vehicle for interest groups and HUD to impose even greater and more controversial obligations on state and local grantees.”
  • “The [Analysis of Fair Housing (AFH) of the 2015] regulation specifically required a detailed analysis of the grantee jurisdiction’s ‘zoning and land use’ laws.”
  • The 2015 rule’s “assessment tool” forced public housing authority grantees to analyze and consider data and policies beyond their jurisdictional control and typical subject-matter expertise.
  • The preamble repeats the gross exaggeration that the Assessment of Fair Housing (AFH) was “unworkable” and that there was a “high failure rate.”

In reality, jurisdictions were not forced changes to zoning laws or undertake greater controversial obligations. While the initial assessment tool did require a detailed and rigorous analysis, as a result of the Paperwork Reduction Act requirement for several rounds of public review and comment, a streamlined version was offered for smaller PHAs and those partnering with other PHAs or the jurisdiction in which they operated. Ultimately, a final assessment tool for PHAs was never issued and no PHA ever had to complete one. Additionally, HUD suspended the AFH in early 2018 (see Memo, 1/8) when only 49 AFHs had been submitted for HUD review (out of what over a period of years would be more than 1,200). While 17 were not immediately approved by HUD on first review, the 2015 rule, recognizing that this new process would entail a learning curve, had an iterative process that entailed HUD explaining what it would take to gain acceptance and to resubmit an AFH with adjustments. Consequently 32 AFHs out of the first batch of 49 were accepted prior to the rule’s suspension.

“Housing justice and racial justice are inextricably linked. The AFFH regulation was an important step to rectify decades of racist housing policies that created today’s segregated neighborhoods and all its associated harm to children, families, and the country,” said Diane Yentel, NLIHC president and CEO in the press statement. “Secretary Carson has worked to undermine fair housing since the day he stepped into the HUD building, so this action is not surprising. But it is abhorrent for Trump to use a critical fair housing tool for election year race-baiting, particularly during a time of reckoning for racial injustices.”

Read the full media statement condemning the action at: https://bit.ly/3f2yxbw

Preserving Community and Housing Choice” is at: https://bit.ly/2P5Xk45

More information about AFFH is on pages 7-14, 7-21, 7-27, and 7-35 of NLIHC’s 2020 Advocates’ Guide.