Policy Minute: HUD Delays Critical Fair Housing Requirement

Research & Policy | March 9th 2018

City Street with text Policy Minute

In January, HUD announced its intention to delay a key component of the Affirmatively Furthering Fair Housing (AFFH) rule passed by the Obama administration. The rule advanced the 1968 Fair Housing Act‘s requirement that jurisdictions receiving federal housing and urban development funds take steps “affirmatively to further” fair housing to address residential segregation and reduce barriers to fair housing.

This Policy Minute explores the historical framework for HUD’s assessment of fair housing requirement and provides context for understanding the potential impact of the delay of that requirement. 



The federal Fair Housing Act outlaws discrimination in housing on the basis of race, color, religion, sex, family status, national origin, or disability. As part of its mandate, the law requires that localities receiving federal housing and urban development funds take steps “affirmatively to further” fair housing. 

In 2015, the U.S. Department of Housing and Urban Development issued a final rule clarifying this “affirmatively furthering fair housing” requirement. The final rule requires that localities, through extensive community engagement and data analysis, complete an in-depth evaluation of barriers to housing choice in their jurisdiction and region, using an assessment tool HUD provides. It then requires the jurisdiction to identify specific and measurable steps it plans to take to reduce these barriers to integration and thereby reduce segregation and increase equality of access to opportunity in their communities. This evaluation is called an Assessment of Fair Housing (AFH), and it replaces a less robust fair housing evaluation HUD previously required of jurisdictions, called the Analysis of Impediments (AI). 

The AFH process was intended to address flaws in the AI process that had been identified by a September 2010 report of the U.S. Government Accountability Office (PDF), and by HUD’s own 2009 internal investigation (which was discussed publicly by Nikole Hannah-Jones in Living Apart: How the Government Betrayed a Landmark Civil Rights Law (ProPublica, June 25, 2015).



Jurisdictions were required to conduct AFHs on a staggered schedule according to the dates on which they had an obligation to submit “Consolidated Plans” required every five years of all recipients of HUD Community Development Block Grant and public housing funding. Forty nine jurisdictions submitted an AFH to HUD between October 2016 and December 2017. 

In January 2018, the Trump administration announced that it was postponing the requirement that jurisdictions conduct an AFH until the next deadline they would face after October 30, 2020. During the interim, if their AFH would have been due, jurisdictions are instead required to complete an AI, HUD’s less-robust fair housing evaluation. Unlike the AFH, there is no standardized form or specific content required for an AI, jurisdictions are not required to submit the AIs to HUD, and HUD likely will not review them.



The Potential Costs to Public Engagement of HUD’s Assessment of Fair Housing Delay
In response to the Assessments of Fair Housing delay and reversion to the AI framework, the NYU Furman Center evaluated some of the potential costs of the Trump administration’s action. The comments, prepared by NYU Furman Center Faculty Directors Vicki Been and Katherine O’Regan, focus specifically on the public engagement process, and were submitted to HUD on Tuesday, March 6, 2018. The authors compared AFHs from 19 of the first 28 jurisdictions to file an AFH with the AIs previously submitted by those same jurisdictions, and analyzed the public’s engagement in both sets of processes across a number of criteria. They argue that a significant cost of the Trump administration’s decision to delay implementation of the AFH requirement is the loss of the robust opportunities for public participation that jurisdictions provided under the AFH process relative to the public engagement they provided in completing their AIs. More >>

HUD's Delay and the Dilemma this Poses for Jurisdictions
In an essay published by the Harvard Joint Center for Housing Studies, NYU Furman Center Faculty Director Katherine O’Regan considers the dilemma now faced by communities that were either in the final stages of conducting their Assessment of Fair Housing or about to start. She notes that jurisdictions are at risk that the delay will be overturned through legal challenges, and that jurisdictions then may find themselves with little time to complete an AFH. She also explores the possibility that completing some (or all) aspects of the AFH may be necessary for jurisdictions to show that they are meeting the continued obligation to affirmatively further fair housing. More >>

Snatching Defeat from the Jaws of Victory: HUD Suspends AFFH Rule that was Delivering Meaningful Civil Rights Progress
In justifying its suspension of Assessments of Fair Housing requirements, HUD claimed that cities need more time to comply. However, research conducted prior to the January 2018 suspension suggests that the AFFH rule was working. According to the authors, Justin Steil and Nicholas Kelly, “even though some municipalities submitted weak proposals, HUD correctly refused to accept those plans until they were revised, and the majority of submissions were a significant improvement over the prior Analysis of Impediments to Fair Housing (AI) regime.” More >>

The Dream Revisited: A New Approach to Affirmatively Furthering Fair Housing
The Dream Revisited, edited by the NYU Furman Center's Ingrid Gould Ellen and Justin Steil, is an ongoing “slow debate” on the causes and consequences of racial and economic segregation in neighborhoods and schools. In this 2015 contribution, Michael Allen, Angela Glover Blackwell, Edward Goetz, and Michael Bodaken and Ellen Lurie Hoffman discuss HUD’s renewed commitment, through the AFFH rule, to the existing requirement of the Fair Housing Act to “affirmatively further fair housing.” More >>



What Would it Take for HUD to Meaningfully Increase Inclusion?
In this series of essays published by the Harvard Joint Center for Housing Studies, expert contributors consider what it would take to meet the 1968 federal Fair Housing Act's requirement that federal entities use their power to "affirmatively further" fair housing, particularly if the Trump Administration proves to be hostile to fair housing. The papers, which were originally presented at a research symposium in April 2017, examine the rule's potential to produce meaningful change. More >>

Video: New York City’s Upcoming Assessment of Fair Housing: Lessons from Other Cities
On Wednesday, November 29, 2017, the NYU Furman Center hosted a discussion that provided an overview of the Assessment of Fair Housing (AFH) process. The panel featured experts reporting on lessons learned from already-completed assessments in other cities and providing key takeaways for other jurisdictions yet to embark on the AFH process. More >>

More background resources on HUD’s Assessment of Fair Housing

Examples of jurisdictions’ completed Assessments of Fair Housing:



The fair housing rule Ben Carson’s HUD wants to delay, explained by Jeff Andrews (Curbed, January 26, 2018)

By word and by deed, Ben Carson is abdicating HUD’s historic responsibilities by Jenny Schuetz and Andre M. Perry (Brookings Institute, March 8, 2018) 


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