HUD rule proposal would let housing segregation slide

HUD will soon publish a proposed rule reducing local government requirements to the Affirmatively Further Fair Housing (AFFH) policy as required by the Fair Housing Act. The proposal completely rewrites an Obama administration requirement that cites document patterns of segregation and proposes concrete solutions in order to get federal community development funds. This Trump proposal provides little accountability for cities that fail to tackle ongoing housing segregation.

The current rule was put in place in 2015 during the Obama administration. It was supposed to strengthen enforcement of the Fair Housing Act. Specifically, local governments are supposed to take, “meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws,” according to the HUD Exchange website.

This requires that local governments actively address historic patterns of segregation and discrimination. The old reporting requirements provided little oversight and accountability for local governments that did not take steps to reduce housing segregation.

Under the 2015 rule, local governments have to analyze housing segregation in their communities. They must also submit a plan with concrete steps to address the segregation and discrimination they have identified. If HUD determines a plan is not sufficient, the local government must revise it or risk losing HUD community development and housing funds. The rule applies to 1,200 local jurisdictions around the country. 

HUD proposed the new AFFH rule because it said the Obama-era requirements posed a burden on local governments. Instead of a 92-question checklist about desegregation efforts, local governments would now just have to propose three goals to meet in the next five years.

HUD substantially changed the AFFH definition in the new rule. The Trump administration proposes changing the definition to, “advancing fair housing choice within the program participant’s control or influence.” This statement is certainly more simple and direct. However, there is little in the statement that reflects the fair housing goal of ending practices that historically promote segregation.

In a press release, HUD Secretary Ben Carson said that the rule would give local governments more flexibility to promote housing choices. “Mayors know their communities best, so we are empowering them to make housing decisions that meet their unique needs, not a mandate from the federal government...Having said that, if a community fails to improve housing choice, HUD stands ready to enforce the Fair Housing Act and pursue action against any party that violates the law."

Completely revising the AFFH rule comes on the heels of earlier efforts to water down fair housing enforcement. In January 2018, HUD delayed the requirement that cities submit their Assessment of Fair Housing reports. These are the reports that analyze patterns of segregation and propose solutions. This past August, HUD proposed a rule that will make it harder for low-income renters to file fair housing complaints. The Trump administration has also restricted fair housing protections for homeless LGBTQ individuals.

The Obama administration’s 2015 AFFH rule was put in place because the old approach required only limited data from local governments. It also did not require accountability if local governments did not make progress eliminating housing segregation. The Obama-era rule promoted accountability. Cities had to propose concrete solutions, and demonstrate progress. Local governments had to make zoning law changes, streamline their permitting process and show they are enforcing anti-discrimination laws to keep getting funds for public infrastructure and affordable housing.

Some cities saw the value in preparing plans to combat housing segregation and discrimination. Even after the Trump administration waived the requirement to submit Assessment of Fair Housing reports, New York City decided to finish work on its plan and use it to set its housing priorities for the next five years. New York City’s report sets out six goals. These include commitments to devote resources to combating discrimination by landlords, preserve affordable housing and help families with rental assistance find homes in neighborhoods of opportunity.

Once the proposed rule is published in the Federal Register, the public will be given the chance to make comments. The public comment period will run for 60 days following the rule’s publication in the Federal Register.

The proposed AFFH rule will not have an immediate impact on low-income renters. However, it will have the long-term impact of slowing efforts to desegregate housing and reduce the concentration of poverty. Cities will have little incentive to remove barriers to quality, affordable housing, and low-income renters, especially racial and ethnic minorities, will pay the price.