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HUD Eliminates Affirmatively Furthering Fair Housing Rule

On July 23, U.S. Department of Housing and Urban Development (HUD) Secretary Ben Carson announced that the Department terminated the Obama-era Affirmatively Furthering Fair Housing Rule (AFFH). The rule is replaced with the Department’s new Preserving Community and Neighborhood Choice rule. In practice, this action lowers the compliance standards for state and local grantees that receive HUD funding to prove that their housing priorities and plans reduce impediments to fair housing.

Under the Obama Administration, HUD issued the AFFH Rule. The purpose of the rule was to create a framework by which state and local governments and agencies — grantees that receive funding from HUD — could be held accountable. Since its inception, the Fair Housing Act of 1968 (the Act) required “executive departments and agencies [to] administer their programs and activities relating to housing and urban development in a manner affirmatively to further the purposes of” the Act. However, prior to the rule becoming effective, proponents argued there was no mechanism for enforcement.

HUD then created a 92-question grading system to evaluate grantees’ plans to eliminate housing discrimination and its effects in local communities as part of the AFFH rule. The process also included a substantial data requirement and required grantees to take significant actions to reduce the impacts of systemic discrimination and segregation locally, in line with the Obama Administration’s broad interpretation of the “affirmatively furthering fair housing” requirement under the Act. Both the AFFH rule and the platform used to evaluate grantees have been eliminated by the Trump Administration.

Even before the AFFH rule went into effect in 2015, program participants were required to submit an Analysis of Impediments to Fair Housing Choice (AI) as part of the Consolidated Plan process and certify that they would affirmatively further fair housing. Under AFFH, this often translated into more progressive jurisdictions suggesting the need to enact more drastic housing policies, such as source of income legislation or restrictions on resident screening, as part of their plans.

Regardless of the elimination of AFFH, state and local governments will continue to be required to submit a Consolidated Plan to HUD which identifies their housing and community development priorities to align and focus the funding allocations they receive from HUD’s Community Planning and Development (CPD) formula block grant programs. The likely outcome is that the fair housing requirement will revert to the submittal of the AI and certification of compliance.

While the new rule lowers the threshold for compliance significantly, there is nothing in the rule that precludes more progressive jurisdictions from continuing to press for sweeping changes to housing policy in their plans. State and local grantees continue to push for these changes and data collection requirements under the banner of eliminating housing discrimination and reducing its impacts locally.

For more information on the Preserving Community and Neighborhood Choice rule, AFFH or other fair housing concerns, contact Nicole Upano, Director of Public Policy at NAA.