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Tell HUD Not to Turn its Back on Fair Housing

In January, HUD published a proposed rule which would replace the affirmatively furthering fair housing (AFFH) rule adopted during the Obama Administration in 2015.  The goal of the original AFFH regulations was to provide cities, counties, and states that receive federal funds for housing with a specific planning approach to help them meet their statutory obligation to affirmatively further the purposes and policies of the 1968 Fair Housing Act. HUD’s recent proposal threatens to undermine the effort to create a fair housing planning process that relies on objective data and public input and is integrated into overall community development planning. 

The 2015 AFFH rule enabled these local jurisdictions to take meaningful actions to address significant disparities in housing needs and in access to opportunity, replace segregated living patterns with truly integrated and balanced living patterns, and transform racially and ethnically concentrated areas of poverty into areas of opportunity. 

The rule was carefully crafted following a years-long public participation process. The proposed rule completely ignores the nation’s history of structural racism and segregation and the Fair Housing Act’s mandate to ensure fair housing opportunities to protected classes based on race, color, national origin, sex, familial status, disability, or religion.  Instead, the proposal employs a supply-side ideology, based on an assumption that increasing the overall supply of housing will filter down to become “affordable” housing, without any recognition that intentional or unintentional discriminatory policies and practices may perpetuate fair housing barriers and segregation.

HUD is accepting comments on its proposed rule until March 16. It is critically important that everyone who works to provide access or protect resources for affordable housing takes time to comment to HUD on the proposed rule, to tell the Trump Administration that we will not abandon our commitment to correcting our nation’s history of racism and discrimination, nor will we accept a retreat to subjective decisions about the use of federal resources, made in the backroom away from the public eye.  Start writing your comments now, or work with partners to develop comments, so that the Administration hears our voices loud and clear and must consider what is at stake. Below is a brief analysis of some of the ways in which the new rule falls short of affirmatively furthering fair housing.

Supply Side Economics Trump Housing Justice

In place of the thoughtfully designed Assessment of Fair Housing, which was developed as part of the 2015 rule as a result of broad public engagement, the Trump Administration’s proposal would create an AFFH certification that reflects the perspective that simply increasing the supply of housing will result in fair housing choice.  While we agree that our nation lacks an adequate supply of rental housing, we reject the notion that we can build our way out of discriminatory policies, practices, or segregation.  Prejudice and discrimination are not just relics of American history, they persist today in local plans, regulations, and actions that determine where housing is built, how public funding is utilized, and whose interests are served. 

Furthermore, the premise that building more housing will meet the needs of lower income households is fundamentally flawed.  It can take generations for newly built housing to “filter” down to become affordable to disadvantaged families and it still may not meet the needs of the lowest income renters.  In hot markets, filtering may take even longer as higher income households move to urban neighborhoods and choose to rent.  Housing that does filter tends to be of poor quality or in need of recapitalization, which can pose increased risks to already vulnerable low-income households. 

HUD’s proposal would require jurisdictions to describe how they would address fair housing by meeting three identified goals.  The state or local governments are excused from providing a description of their goals if they select from a list of 16 “obstacles” that HUD identifies as “inherent” barriers to fair housing choice.  It is notable that only three of these factors actually pertain to fair housing constraints; the other conditions may affect the cost or ease of building new housing.  None of the obstacles address discrimination related to race, national origin, or any of the other protected classes. 

Standardized Data Rejected

For the 2015 AFFH rule, HUD provided access to a standard interactive database to help jurisdictions identify impediments to fair housing, plan evidence-based actions, and measure their progress.  In contrast, the new rule proposes to discard this common set of minimum analytical tools in favor of “practical experience and local insights.”  While local data and knowledge is essential to complement uniform data, leaving the evaluation of fair housing challenges to local discretion may simply lead to perpetuating discriminatory practices and evade truly furthering fair housing.

Public Participation Diminished

The proposed rule would eliminate the 2015 rule’s requirement that jurisdictions conduct a separate public participation process, including a public hearing and written comment period, to gather information about residents’ fair housing concerns and priorities before any AFFH-related considerations might be reflected in a jurisdiction’s Consolidated Plan (Con Plan).  Identifying fair housing issues, assessing priorities, and recommending goals entail very different concepts and even divergent stakeholders than the Con Plan process, thereby warranting separate public participation procedures.  Incorporating public comments about AFFH into the Con Plan public input process threatens to dilute and diminish the attention paid to fair housing challenges by constituents as well as elected officials.

2.11.2020