NYU Furman Center Comments on HUD’s January 2020 AFFH Proposed Rule

Research & Policy | April 2nd 2020

Exterior of Robert C. Weaver Federal Building, headquarters of the United States Department of Housing and Urban Development.

Under the Fair Housing Act and subsequent federal legislation, local jurisdictions that receive federal funding have a duty not just to prohibit discrimination in housing, but also to affirmatively further fair housing. For decades, the U.S. Department of Housing and Urban Development (HUD) failed to ensure that the recipients of HUD assistance fulfilled their obligation to “affirmatively further fair housing” -- to identify and proactively address barriers that would preclude people from accessing housing based on a series of protected characteristics outlined in the 1968 Fair Housing Act as amended: race, color, religion, national origin, sex, disability, and family status. After a promising regulation addressing these longstanding shortcomings was finalized in 2015, HUD proposed a new rule in January 2020 once again overhauling the AFFH regulatory framework, despite the early promise of the 2015 changes. The NYU Furman Center, with MIT Professor Justin Steil, submitted formal comments in response. Read the full comment submitted to HUD.

While the Fair Housing Act and subsequent legislation has long required federal funding recipients to affirmatively further fair housing (AFFH), HUD loosely defined the main mechanism to enforce compliance among grantees. In July 2015 HUD finalized a rule that more clearly defined the goals and steps required for grantees to meet their obligations to AFFH under the Fair Housing Act, and began providing technical assistance to jurisdictions required to comply with the new process.

Despite promising early results, HUD announced an Advance Notice of Proposed Rulemaking in August 2018 indicating their intent to revisit the rule. In October 2018, the NYU Furman Center submitted comments urging HUD to improve the current approach to AFFH rather than revisiting approaches that have failed in the past.

HUD proceeded with issuing a final rule in January of 2020 that overhauled the AFFH process notwithstanding an overwhelming volume of comments from fair housing groups concerned with the retreat from a process driven by research, data, and best practices. 

The Proposed Rule focuses primarily on increasing the supply of affordable and habitable housing. While this is a worthy goal, our comments note that this is a separate goal from affirmatively furthering fair housing. While the cost and quality of housing are important, location matters too, as do the disparate burdens certain protected classes face when trying to access it.

On a fundamental level, AFFH is about furthering fair housing, not just affordable housing, or housing in general. Though society has changed in many ways since 1968, housing discrimination remains inextricable from economic discrimination and social mobility, especially for communities of color. The Proposed Rule downplays the importance of segregation and discrimination against protected classes in a way that departs from the Congressional intent behind the Act as well as its statutory mandate.

Early evidence indicates that the Assessment of Fair Housing (AFH) process substantially improved upon the prior Analysis of Impediments (AI) process. Though the Proposed Rule claims that the 2015 Rule deprived jurisdictions of flexibility, the rule provided municipalities with the ability to create locally tailored solutions to address local problems regarding fair housing. While inevitably, some jurisdictions would have found the level of detail required by the AFH daunting, it is too soon to conclude that the entire process was flawed, either for jurisdictions or HUD itself. Future grant recipients would have learned from the initial submissions, lessening the resources required both to submit and review submissions.

A study of the AFH process conducted by the Furman Center between October 2016 and July 2017 found that the new requirements led to greater levels of public engagement compared to the AI process. Under the AFH process, jurisdictions used a wide range of communications strategies to engage different demographics and solicit public participation; documentation requirements also led to greater transparency about levels of public engagement. In a roundtable discussion organized by the NYU Furman Center, jurisdictions themselves also reported that they found the AFH process more helpful and meaningful than the AI process. By reverting public engagement practices back to what they were under the AI process, the Proposed Rule ignores the demonstrable success of the AFH process in engaging the public and encouraging transparency.

HUD’s proposed ranking tool is also a cause for concern, as it would fail to accurately capture fair housing conditions. HUD’s proposed ranking tool includes no measure of segregation or spatial data; instead, it seeks only to measure affordability and physical quality, which, while important criteria, do not capture the full reality of affirmatively furthering fair housing for protected classes. In addition, HUD proposes to collect no data disaggregated by protected classes, even though such data is essential to assess whether jurisdictions are affirmatively addressing disparities. For states, HUD’s use of aggregate data would collapse any regional nuance in a way that would make comparisons meaningless at best, and potentially deeply misleading at worst. The new tool proposes to aggregate a set of mismatched metrics into a single arbitrary score, which is insufficient to meet HUD’s statutory obligations under the Fair Housing Act. As a whole, the ranking tool will fail to identify disparities and discrimination in housing.

As the COVID-19 pandemic unfolds across the world, we are seeing in stark terms how issues related to housing intersect with public health, economic opportunity, and countless other policy areas. Arguably, the stakes of affirmatively furthering fair housing are higher than they have ever been. While addressing affordability and physical quality are important, combatting segregation and discrimination is at the core of the Fair Housing Act and should feature prominently in any AFFH process. We hope that HUD will rethink its 2020 Proposed Rule to ensure that all people, especially those in protected classes, can enjoy not just affordable but fair housing.

Read the full comments submitted to HUD, with Appendices A, B, and C.

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