NYU Furman Center Comments on Affirmatively Furthering Fair Housing
The NYU Furman Center submitted comments in response to HUD’s Advance Notice of Proposed Rulemaking for the Affirmatively Furthering Fair Housing (AFFH) rule. HUD is considering replacing the AFFH Final Rule despite the early evidence suggesting the new approach was working. This post excerpts and summarizes the key points of our comment, which urges HUD to improve upon the current approach rather than returning to approaches that have indisputably failed. Read the full NYU Furman Center comment submitted to HUD here.
Since the Fair Housing Act (FHA) was enacted in 1968, racial integration has been slow and inconsistent, despite the law’s requirement that HUD administer its programs “in a manner affirmatively to further” the purposes of the FHA. As recently as 2010, black and white people rarely shared neighborhoods. And despite the rapid increase of Hispanic and Asian populations, these groups remain largely segregated from white people. Here in New York, the interactions of segregation and poverty mirror the disparities nationwide; across America, high poverty neighborhoods are disproportionately populated by racial and ethnic minorities.
Multiple studies have shown that segregation causes significant harm. Merely attending school in a racially-isolated, high-poverty neighborhood reduces a black student’s verbal ability—a powerful indicator of future life outcomes—as significantly as if that student missed an entire year of school. In hyper-segregated areas, black residents are exposed to higher levels of violent crimes, which has been shown to have detrimental effects on children’s performance in school. Living in a highly-segregated, high-poverty neighborhood is associated with lower life expectancy and a sharp increase in greater health risks like infant mortality.
Yet despite this ample body of evidence, HUD justified its intent to suspend the AFFH rule in part on a recent Harvard study that found “robust evidence that children who moved to lower-poverty areas when they were young (below age 13) are more likely to attend college and have substantially higher incomes as adults,” but did not find that effect for children who moved when they were 13 or older. Far from justifying backtracking on fair housing, the study’s conclusions support even more vigorous efforts to ensure that every community provides fair housing to give all children the chance to grow up in neighborhoods that improve their life prospects.
Starting in the 1990s HUD attempted to specify more clearly what jurisdictions and public housing authorities receiving federal funds must do to comply with their duty to affirmatively further fair housing. Specifically, jurisdictions were required to prepare an “Analysis of Impediments to Fair Housing Choice” (AI) and take appropriate actions to overcome the effects of any impediments. Ultimately, these attempts to regulate and enforce the AFFH provision were criticized for design flaws and weak enforcement that signaled to communities that they could neglect fair housing.
Responding to the inadequacies in the AI process, in 2015 HUD promulgated a rule that created the Assessment of Fair Housing (AFH) process, a “collaborative federal mandate, requiring states and localities to create their own unique fair housing plans.” Contrary to HUD’s claims that the new system has failed, early evidence from researchers at MIT and the NYU Furman Center found improvements over the prior AI regime in several key areas. The decision to abandon a new, but apparently improved, system after just two years of experience, and revert to a process known to be deeply flawed defies common sense.
Additionally, HUD’s notice signaled its intent to focus fair housing efforts on encouraging “actions that increase housing choice, including through greater housing supply.” Increasing housing supply is surely a laudable goal, but there is no guarantee that the additional supply will lead to fair housing—housing free from discrimination and segregation—as the affirmatively further fair housing mandate requires. Further, HUD has a long history of failed efforts to encourage state and local governments to allow increased housing supply, and without specific and concrete plans about how to improve upon those failures, that focus is once again unlikely to result in fair housing.
After decades of ineffective enforcement of the fair housing mandate, the pernicious effects of segregation remain widespread in American cities, at an enormous social cost and in disregard of the Fair Housing Act. The early evidence shows that the AFFH rule made positive steps by introducing accountability and requiring grounded, localized analysis of factors contributing to segregation, expansive community engagement, and specific goals and strategies about of how to achieve fair housing. Rather than returning to systems that proved to be ineffective over many years, HUD should work to improve upon the progress the AFFH rule made.