A fair housing rule established to combat segregation and create inclusive communities is currently being re-written. Changes to the rule would allow communities to ignore the racial desegregation obligations of fair housing law
Image courtesy Gordon Walek, LISC Chicago
By Kristen Gore and Edited by Juan Sebastian Arias, Manager - March 2, 2020
The 2015 Affirmatively Furthering Fair Housing (AFFH) rule is at risk. Recent proposed changes to the rule would eliminate the requirement that municipalities assess patterns of segregation and discrimination in order to receive federal funding.
More than 50 years after the passage of the Fair Housing Act, why is this rule still important today?
According to a report by the Brookings Institute, these proposed changes come during a time of persistent segregation, unequal access to credit and homeownership, and the depreciation of homes in African American neighborhoods. Renters of color continue to struggle in a housing market of increasing rents. The Joint Center for Housing Studies reports that in 2017, 54.9% of African American renters were cost-burdened, followed closely by Latinx households at 53.5%. The rates for White households, by comparison, is noticeably lower at 42.6%. People living with a disability, people of color and LGBTQ persons are all also more likely to experience housing discrimination. The practices that reinforce segregation and disinvestment, such as red-lining, continue to persist.
The AFFH rule is needed now as much as ever.
Under the 2015 AFFH rule, municipalities were required to engage in a data-driven process to develop a plan to combat long-standing segregation. Municipalities were required to assess housing patterns, concentrations of poverty, and disparities in disability access, transportation, jobs and schools. The assessment of these key areas provides communities with guidance and tools to address the harmful patterns of systemic segregation, discrimination and disinvestment.
Now, HUD is proposing to scrap this tool. The proposed changes will no longer require that communities consider whether or not their policies advance housing opportunities for those that have been historically discriminated against.
The National Low-Income Housing Coalition (NLIHC), a leading housing advocacy organization, says that the proposed rule “represents a complete retreat from efforts to undo historic, government-driven patterns of housing discrimination and segregation throughout the U.S.”
So what are the proposed changes?
HUD’s proposal includes a new process to evaluate each municipality’s efforts by measuring: “whether a jurisdiction (1) is free of adjudicated fair housing claims; (2) has an adequate supply of affordable housing throughout the jurisdiction; and (3) has an adequate supply of quality affordable housing.”
Changes to the definition.
This proposal changes the very definition of the 2015 Affirmatively Furthering Fair Housing by focusing on increasing housing choice and eliminates the goal of ending segregation and concentrated poverty.
A new evaluation process.
Within the new proposed evaluation process, jurisdictions will be required to identify three fair housing choice obstacles or goals through a consolidated planning process. There are 16 identified obstacles provided by HUD, of which only three are related to fair housing. Examples of the other 13 obstacles are: the time it takes for title clearance, construction-approval procedures, construction-permitting procedures, design standards, and building codes.
HUD additionally proposed obstacles that are important to the protections of vulnerable populations. These include: rent control, environmental regulations, labor requirements, and tax policies that discourage investment. This leaves out critical issues such as displacement of communities of color in tight rental markets, as well as crucial labor and environmental principles that should not be listed as obstacles to fair housing.
The new evaluation process gives priority for federal housing grants to communities that rank the best on housing costs and fair market rent. This change would punish high-cost cities with great housing needs and award smaller, cheaper communities where housing costs are lower.
Through these changes, jurisdictions that have been found liable for discrimination through private lawsuits would also still be able to access federal funding. It will not ensure fair and affordable housing for low-income individuals; and is even less likely to combat discriminatory attitudes, policies, practices or entrenched segregation.
Elimination of Public Participation.
The proposed changes also eliminate requirements of a public participation process. The 2015 AFFH rule required that jurisdictions host public hearings and a written comment period to engage resident voices on fair housing issues.
These changes will strongly weaken fair housing efforts. Public participation in assessing and identifying fair housing goals is a critical aspect of the AFFH rule. In order to tackle the multifaceted issues of fair housing, segregation and disinvestment – we must center the voices of those most affected. By eliminating public participation, HUD limits the ability of community leaders to influence the process, even though residents can speak with greater authority about what their community is most impacted by and how those issues can be best addressed.
Elimination of the Public Housing Agency Certification.
Last, HUD proposes to no longer require that Public Housing Agencies (PHA) have an AFFH certification. With the changes, a PHA would no longer have to conduct a meaningful fair housing analysis. It is important for PHAs to be involved and regulated in the requirements of fair housing; every PHA plays an important role in upholding fair housing regulations through its policies and practices.