“Affirmatively to Further the Purposes”: Affirmatively Furthering Fair Housing Under the Biden Administration By Jamison Koeman
In 1968, Congress passed the Fair Housing Act in order to end housing discrimination. Today, the law prohibits discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability in the sale and rental of housing, mortgage lending, and advertising.1 In addition, the act prohibits harassment, coercion, and retaliation, and requires reasonable accommodations for people with disabilities.2 A short provision passed with the original Fair Housing Act, called the “Affirmatively Furthering Fair Housing” (AFFH) provision, states that the Department of Housing and Urban Development (HUD) and other executive agencies implementing programs related to housing and urban development must conduct implementation “affirmatively to further the purposes” of the statute.3 Despite the passage of the Fair Housing Act, a step that would seem to portend the end of housing discrimination, segregation, and disparate opportunity in the United States, the issue still persists. According to the National Low Income Housing Coalition, Black, Native American, and Hispanic homebuyers still face several discriminatory barriers, including racially motivated steering, underexposure to homes, and a system of credit scoring and lending practices that disadvantages prospective homebuyers without a credit history.4 In addition, Black, Native American, and Hispanic households account for a disproportionate percent of extremely low-income renter households. For example, Black households account for over a quarter of extremely low-income renter households despite being only 12% of households overall.5 Discriminatory barriers to homeownership and affordability in the rental market are only two of several factors leading Black, Native American, and Hispanic households to often congregate by race and ethnicity, thereby furthering patterns of housing segregation.6
Affirmatively Furthering Fair Housing in the Last Decade Until 2015, localities receiving federal funding were required to conduct an Analysis of Impediments (AI) to identify fair housing issues in their communities. 14
AIs were expected to identify barriers to fair housing at the local level and promote fair housing planning. However, research found that AIs did not meet this expectation due to limited regulation, poor oversight, and a lack of resources to support localities.7 The research showed that AIs too often were outdated, lacked content, failed to provide a timeline for implementing their recommendations, and failed to provide an elected official’s signature.8 AFFH regulations strengthened in 2015 when a more comprehensive rule established the Assessment of Fair Housing (AFH).9 The AFH provided greater depth of information than the former AIs and the new rule clarified HUD’s assessment metrics, improved oversight, and supported localities with a data tool for fair housing analysis.10 Importantly, the new rule stated that the goal of AFFH is to “overcome the legacy of segregation, unequal treatment, and historic lack of access to opportunity in housing” and required localities to not only incorporate their findings into their planning processes, but also make proactive steps towards achieving fair housing in their communities in order to receive federal funds.11,12 As a result of the 2015 rule, there was greater incentive and support to further fair housing at the local level. However, the Trump administration overturned the 2015 rule in 2020 with a new regulation that argued HUD had too much power over local land use laws and the definition of AFFH. HUD’s 2020 AFFH rule rejected AFFH’s prior definition on the premise that “jurisdictions may find many ways to advance fair housing that HUD officials cannot predict.”13 In doing so, the 2020 rule left interpretation of the phrase up to local discretion and reduced opportunity for federal oversight. Similar to the Obama administration, the Biden administration now has the opportunity to pave a new path towards fair housing. In the following pages, I will first address the legal landscape surrounding the definition of AFFH. Second, I will summarize the literature evaluating the 2015 rule, including local compliance, HUD’s assessment tool, and legal implications. Finally, and relying on the legal and empirical base, I will offer recommendations for a Biden administration’s efforts to implement a new and emboldened AFFH rule.
