January 9, 2020

Enterprise Opposes HUD’s Proposed AFFH Rule that would Weaken the Implementation of the Fair Housing Act

Updated March 16, 2020

On January 14, HUD released its proposed changes to the Affirmatively Furthering Fair Housing (AFFH) rule, which would take dramatic steps to weaken how HUD and jurisdictions nationwide fulfill their duties to uphold the Fair Housing Act. As an organization committed to fostering inclusive and equitable communities of opportunity, Enterprise strongly opposes this proposed rule.

“The legacy of residential segregation continues to affect thousands of Americans. Enterprise is committed to changing that, and we’ve supported the implementation of HUD’s fair housing goals. This proposed AFFH rule will inhibit HUD’s own ability to advance fair housing. It is also is a disservice to our collective responsibility to remedy a shameful legacy of structural racism and residential segregation,” said Enterprise Community Partners President Laurel Blatchford.  

Background

The Fair Housing Act of 1968 prohibited discrimination and established the legal duty to affirmatively further fair housing, which requires HUD and its grantees to actively address housing discrimination and segregation and to foster inclusive communities. For decades, there were no regulations as to how HUD and its grantees should actually implement this legal requirement, and many communities’ segregated housing patterns continued to go unchecked. 

In 2015, after a lengthy process collecting input from a broad set of stakeholders, HUD adopted the long-awaited AFFH rule, which provided a community-centered process to analyzing barriers to fair housing and identifying goals to fostering more inclusive communities. The 2015 AFFH rule established the new Assessment of Fair Housing (AFH) process, which was a marked improvement from the prior Analysis of Impediments (AI) process for identifying barriers to fair housing. In a 2010 study, the Government Accountability Office (GAO) found that AIs were ineffective, noting that “HUD’s limited regulatory requirements and oversight may help explain why many AIs are outdated or have other weaknesses.” This progress toward more effective processes and policies to further fair housing were interrupted in 2018 when the administration suspended the implementation of the AFFH rule, and directed grantees to return to the AI process. 

Summary of the Proposed Rule 

HUD’s proposed AFFH rule outlines a new process to evaluate each jurisdiction’s efforts to AFFH by measuring: “whether a jurisdiction (1) is free of adjudicated fair housing claims; (2) has an adequate supply of affordable housing throughout the jurisdiction; and (3) has an adequate supply of quality affordable housing.” This proposal oversimplifies an assessment of AFFH and would fail to capture the nuances of barriers to opportunity. While a sufficient supply of affordable housing is a valuable policy goal, it does not alone reflect how a jurisdiction is performing in furthering fair housing. By removing any regard for patterns of residential segregation or integration, HUD’s proposed process would neither accurately report nor incite a jurisdiction’s efforts to further fair housing.

In fact, HUD’s proposed rule would even change the definition of “affirmatively furthering fair housing” to be stripped of any reference to desegregation and creating areas of opportunity. The current regulation defines AFFH as “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” HUD proposes changing the definition of AFFH to “advancing fair housing choice within the program participant’s control or influence.” This proposed change in definition of AFFH reflects a dramatic shift in approach to furthering fair housing to one that disregards residential segregation and with it, the immense body of research that demonstrates that communities today continue to be racially segregated with negative health, education, and economic mobility outcomes for its residents. 

Lastly, HUD proposes that for the certification process, jurisdictions will be required to 
commit to addressing at least three fair housing choice obstacles or goals over the next five years through their consolidated plan process, with no additional community engagement requirements. This proposed certification process is grossly inadequate and is clearly not designed to compel meaningful outcomes. 

Response to HUD

The proposed rule was published in the Federal Register on January 14, with public comments due on March 16, 2020. Enterprise Community Partners, Housing Partnership Network (HPN), Local Initiatives Support Corporation (LISC), Low Income Investment Fund (LIIF), National Housing Trust (NHT), and Stewards for Affordable Housing for the Future (SAHF) submitted joint comments. 

Enterprise and our joint comment letter partners believe HUD should withdraw the current proposed rule and allow additional time for current AFFH regulation (Final Rule) to be implemented. Our organizations do not support HUD's AFFH proposed rule because it is substantially weaker than the current regulation and diminishes the Department's ability to enforce its AFFH responsibilities. In particular, we believe the proposed rule should be withdrawn because it: 1) redefines AFFH to primarily focus on local regulation barriers to housing development and supply while not requiring an examination of residential segregation or impacts of local actions on protected classes; 2) diminishes public participation requirements; 3) uses a flawed definition to determine a jurisdiction's fair housing performance; 4) disincentivizes regional collaobration; and 5) diminishes AFFH responsibilities for public housing authorities. 

Stay tuned for more resources and information on this critical issue. 

View the proposed AFFH rule at: https://www.federalregister.gov/documents/2020/01/14/2020-00234/affirmatively-furthering-fair-housing

View Enterprise's comment letter at: https://www.enterprisecommunity.org/resources/joint-comments-huds-proposed-affirmatively-furthering-fair-housing-rule-10092

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