Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
HUD’s Affirmatively Furthering Fair Housing policy required communities to confront racial inequities in housing. Now, it’s being postponed.
The Trump administration is rolling back the deadline for a key rule on fair housing made into law under President Barack Obama—a change with potentially broad consequences for racial segregation.
The new guidance will give communities until well after 2020 to comply with an Affirmatively Furthering Fair Housing rule put in place two years ago. The Obama-era rule represented a long-awaited effort to give teeth to a federal Civil Rights-era requirement that local governments take active steps to undo racial segregation.
The U.S. Department of Housing and Urban Development says that the extension simply gives communities more time to address a ruling that some have struggled to follow. Fair housing advocates see it differently: They worry that the Trump administration is abandoning a direly needed correction that is already underway.
“There are jurisdictions working around the clock right now on their efforts to demonstrate that they are actively promoting fair housing in their respective communities,” says Kristen Clarke, president and executive director for the Lawyers’ Committee for Civil Rights Under Law. “The suspension of this rule right now will bring to a grinding halt the very proactive steps that many jurisdictions have been taking.”
HUD established the Affirmatively Furthering Fair Housing final rule in 2015, fulfilling an unmet mandate of the Fair Housing Act of 1968. That groundbreaking civil rights law, which forbids racial discrimination in housing, also requires local governments to work to desegregate their communities. However, the provision of the law that called on policymakers to “affirmatively further” fair housing has always proven tricky to implement or enforce.
Forward momentum on housing desegregation finally arrived in 2015, when the U.S. Supreme Court ruled that the Fair Housing Act prohibited policies that negatively affect protected minority groups, even without an explicit statutory intent to do. The Obama administration followed this “disparate impact” decision with the AFFH rule: a directive to any community receiving block-grant funding from HUD to complete a comprehensive Assessment of Fair Housing.
The notice delivered by HUD Secretary Ben Carson, which will appear in the Federal Register on Friday, does not revise AFFH or change the Assessment of Fair Housing requirement. But it gives participating jurisdictions—about 1,200 total—until October 31, 2020, or after to submit their assessments. (Right now, municipal authorities are implementing AFFH in a rolling fashion, largely based on where they fall in their local planning cycles.)
“It took a lot of our local partners and participating jurisdictions by surprise,” says Megan Haberle, director of housing policy for the Poverty & Race Research Action Council. “It’s thrown a lot of people into confusion. A lot of these particular jurisdictions had proceeded in good faith and in compliance with this rule.”
Hundreds of communities are partway through or nearly finished with their required assessments of how racial segregation manifests where they are—and what to do about it. Now, local and county governments may postpone this work, turning to more immediate deadlines, to the detriment of families languishing in substandard housing or racially concentrated poverty.
Before he joined HUD, Carson derided AFFH as “social engineering,” so the decision to delay its implementation isn’t exactly surprising. Republicans in Congress have even proposed legislation to dial back the fair-housing requirement. In any case, HUD says that it embarked on a comprehensive review of its policies and programs, with an eye toward “rules that might be excessively burdensome or unclear,” when the government turned over. And in the process, one wrinkle it found was a data-mapping tool that HUD launched with AFFH. According to the statement, users didn’t find it so useful.
But the review was ultimately narrow. HUD analyzed all the required Assessments of Fair Housing submitted by communities over the last year, finding that one-third of the submissions were returned for more information. However, the number of assessments was tiny—just 49 out of about 1,200 eligible communities overall.
This means that HUD postponed a rule governing hundreds of city and county governments based on a problem encountered by about 17 of them—a problem that all of them ultimately resolved.
Stephanie Reyes, state and local policy manager for Grounded Solutions Network, a national fair housing association, says that her organization helped advise Los Angeles on completing its Assessment of Fair Housing to meet the AFFH standard. She says that the requirement forced local officials to face housing segregation as a matter of policy, not just wishful thinking. L.A.’s final draft document outlines “dozens of strategies” for fostering more inclusive communities, she says.
“The city would agree that it did feel like a compressed timeline to put together their full Assessment of Fair Housing in a short time,” Reyes says. “But they rose to the challenge.”
With these Assessments of Fair Housing—and with AFFH compliance more broadly—local and county governments must analyze housing segregation by a number of factors. These include patterns of segregation, racially concentrated areas of poverty, disparities in access to better opportunity, and disproportionate needs in housing.
Housing advocates say that the first round of assessments included several submissions that did what AFFH meant for them to do. Working with housing experts and affected communities, policymakers looked at the structural sources for racial segregation in their communities and drafted some potential policy solutions. New Orleans and Seattle came up with assessments that may stand out as models for other communities when their time comes.
Except, for now, these ongoing self-assessments may be suspended altogether, which could mean a return to the status quo before the more-stringent AFFH requirement: Without a deadline that could cost them federal funding, many communities may fail to follow through on their commitments.
“The optimistic side of me says that maybe there are public agencies that are committed to advancing fair housing,” Reyes says. “The more realistic part of me says that public agencies around the country have many, many competing demands on their time.”