Assessing HUD’s Notice of Proposed Rulemaking on Affirmatively Furthering Fair Housing

Keywords: Housing, segregation, integration, desegregation, affirmatively further fair housing, Housing and Urban Development, analysis of impediments, assessment of fair housing, assessment tool, administrative law
Session Type: Virtual Paper Abstract
Day: Friday
Session Start / End Time: 2/25/2022 05:20 PM (Eastern Time (US & Canada)) - 2/25/2022 06:40 PM (Eastern Time (US & Canada))
Room: Virtual 45

Abstract

Over fifty years ago, Congress enacted a unique civil rights directive. The “Affirmatively Further Fair Housing” or AFFH mandate of the Fair Housing Act of 1968 requires every federal agency—and state and local grantees by extension—to take affirmative actions to reduce housing segregation. Overlooked for decades, this provision gained new relevance in 2015 when the U.S. Department of Housing and Urban Development promulgated a final regulation defining—for the first time in law—what it means to “AFFH.” The rule was short-lived. The Trump Administration suspended the rule—causing most jurisdictions to revert to an older fair housing planning process, the Analysis of Impediments to Fair Housing Choice—and later scrapped the fair housing planning process altogether. Recently, however, the Biden Administration has revived the process. Proceeding in two parts, it first issued a final interim rule reinstating key regulatory definitions. Second, it issued a Notice of Proposed Rulemaking (NPRM), which proposes to reinstate a streamlined regulation.

This paper builds on a prior article describing the shortcomings of the Analysis of Impediments process. It addresses whether the new proposed rule remedies these shortcomings. Specifically, the paper asks whether the proposed planning process contains adequate legal mechanisms to meaningfully incentivize state and local innovation in planning to reduce segregation in the most segregated metropolitan regions. These mechanisms include a user-friendly Assessment Tool that facilitates the identification of key barriers to fair housing and specific, measurable goals to overcoming those barriers, compelling incentives for regional collaboration, and appropriate sanctions for failure to comply.